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Full text of "International law situations with solutions and notes, 1935"

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NAVAL WAR COLLEGE 



International Law 
Situations 



WITH SOLUTIONS AND NOTES 



1935 



$ 



UNITED STATES 

GOVERNMENT PRINTING OFFICE 

WASHINGTON : 1936 



For sale by the Superintendent of Document*. Washington. D. C. - - - - Price 75 cents (cloth) 



PREFACE 

This volume of International Law Situations for 1935 
has, as in recent years, been prepared by George Grafton 
Wilson, LL.D., professor of international law at Har- 
vard University. The naval officer from time to time 
faces problems under new conditions or under new con- 
ventional agreements. Some of these have been the 
subject of discussion by the Staff of the College and 
members of the Class of 1936. After critical canvassing 
of the principles involved, the material has been organ- 
ized for publication. 

The conclusions reached are in no way official, but 
the notes furnish a convenient survey of material which 
may be significant for the subjects presented. 

In order to increase the usefulness of this publication, 
criticisms and suggestions covering timely topics for 
discussion will be welcomed by the War College. 

E. C. Kalbfus, 

Rear Admiral, United States Navy, 

President Naval War College. 

July 3, 1936. 

m 



CONTENTS 



Page 

Situation I. — Vessels and neutral ports 1 

Solution: 

(a) 1, 2, and 3, Privileges in neutral ports 2 

(6) Neutral obligations 2 

(c) Closed port 2 

Notes: 

Value of preliminary agreements 2 

Three-mile limit 3 

Repairs in neutral port 4 

Hague Convention XIII, 1907 5 

Views on sojourn 5 

Regulations on repairs 7 

Brazil's rules on repairs, 1914 8 

Statement of Professor Hyde 9 

(a) 1. The Xara in port of B 9 

Neutral and belligerent rights 10 

Attitude of the United States, 1914 13 

British position, February 10, 1915 14 

Acts of 1935 and 1936 14 

Changed American attitude, 1935-36 15 

Belligerent cargoes 17 

Public property on vessel . 18 

Article 12, Habana Convention on Maritime 

Neutrality 19 

(a) 2. The Aba in port of B 20 

Transformation from war to merchant vessel 20 

Consideration at the Naval War College 21 

Discussion at The Hague, 1907 22 

Attitude on reconversion, 1907 24 

British proposal, 1907 25 

Institute of International Law, 1913 25 

Precautions against conversion 27 

The Prinz Eitel Friedrich 29 

Reconversion of interned vessels of war 31 

British instructions, 1915 32 

Chilean note, 1915 32 

Conversion of auxiliary ships 33 

V 



VI CONTENTS 

Situation I — Continued. 

Notes — Continued. Page 

(a) 3. The Xebe and state B 34 

Unneutral service and neutrals 35 

Vessels liable to attack 35 

Attitude of Ecuador, 1914 36 

Nicaraguan attitude, 1914 37 

Action of Argentine, 1914-15 37 

Supplying vessels of war at sea 38 

The Farn, 1915 39 

Habana Convention on Maritime Neutrality, 

1928 40 

(6) The Dobo and commerce of state Y 41 

Asylum in neutral ports 42 

American treaties 43 

The case of the Pisa 44 

Entrance of vessels of war in time of peace 47 

Norwegian rules, 1912 47 

Rules in World War 48 

Netherlands declaration, 1914 50 

United States-Panama agreement, October 10, 

1914 51 

Proclamation, November 13, 1914 52 

(c) The Xibi in a closed neutral port 53 

Solution: 

(a) 1, 2, and 3, Privileges in neutral ports 53 

(6) Neutral obligations 54 

(c) Closed port 54 

Situation II. — Action during civil strife 55 

Solution : 

(a) 1 and 2, Assisting local authorities 56 

(6) 1 and 2, Pursuit 56 

(c) 1 and 2, Insurgent cruiser 56 

Notes: 

Disturbed condition of affairs 56 

Treaties, Central American States, 1907 57 

Nicaragua, 1909 58 

Mexico, 1916 60 

Civil strife 62 

The United States at Montevideo Conference, 

1933 62 

Intervention, Montevideo, 1933 64 

Interpretation. 1936 65 

Navy attitude, 1891 66 

Protection of alien property 68 



CONTENTS VII 

Situation I — Continued. 

Notes — Continued. F&ge 

Arms traffic in civil strife 69 

British action, Nanking, 1927 70 

Liability of insurgents 71 

The Perlas, 1909 72 

Flag similar to national flag 73 

Attitude of the Uj ited States, 1914 74 

Permitted coaling in time of peace 75 

Use of foreign flag 77 

Liability under charter 78 

Navy regulations 80 

Insurrection in state O 80 

Solution: 

(a) 1 and 2, Assisting local authorities 82 

(6) 1 and 2, Pursuit 82 

(c) 1 and 2, Insurgent cruiser 82 

Situation III. — Aircraft — Hospital ships 83 

Solution: 

(a) 1 and 2, Aircraft and blockade 84 

(6) Disabled aircraft 84 

(c) Armed private aircraft 84 

(d) Gas bombs 84 

(e) 1 and 2, Hospital ships 84 

Notes: 

Surface blockade 84 

Restrictions on use of aircraft, 1899, 1907 86 

Air and marine blockade 87 

(a) Blockade: Surface, submarine and aircraft. __ 88 

Aircraft in distress 89 

Internment of British seaplanes 90 

Naval War College discussion, 1926 92 

(b) Aircraft 93 

Article 53, Hague rules, 1923 93 

Armed private aircraft 95 

(c) Military aircraft in neutral jurisdiction ._ 95 

Retaliation 97 

Protocol on gases, 1925 98 

Treaty of Versailles, Article 171 100 

Bombardment from aircraft 102 

Proposals before the Conference for the Reduc- 
tion and Limitation of Armaments, 1932 104 

(d) Use of gas 106 

Hospital ships in World War 106 

The Orel, 1904 107 



VIII CONTENTS 

Situation I — Continued. 

Notes — Continued. Page 

The Ophelia, 1914 108 

Controversy on use of hospital ships, 1917 110 

International Red Cross, 1917 111 

(e) Hospital ships 113 

Solution: 

(a) 1 and 2, Aircraft and blockade 113 

(6) Disabled aircraft 114 

(c) Armed private aircraft 114 

(rf) Gas bombs 114 

(e) 1 and 2, Hospital ship 114 

Appendixes: 

I. Convention on Maritime Neutrality. February 

20, 1928 115 

II. Convention Concerning the Rights and Duties of 
States in the Event of Civil Strife. February 20, 

1928 125 



Situation I 

VESSELS AND NEUTRAL PORTS 

States X and Y are at war. Other states are neutral. 
There have been several engagements between the ves- 
sels of war of X and Y. 

(a) State B declares that it will maintain strict 
neutrality. 

(1) The Xara, a cruiser of state X, has run upon a 
submerged reef 4 miles off state B while engaging ves- 
sels of war of state Y, but, though damaged, unsea- 
worthy, and still pursued by vessels of Y, escapes to a 
port of B. State B declines to allow repairs of any 
kind in its waters unless the Xara be interned to the 
end of the war. 

(2) State B declines to allow privileges in its har- 
bors except such as are allowed to belligerent vessels 
of war to the Aba, a neutral merchant vessel of state A, 
which is entirely loaded with freight belonging to state 
X and bound for state A. 

(3) State B declines to admit, except under the rules 
for vessels of war, the Xebe which claims to have been 
transformed from a supply ship of the navy of state 
X and to be registered in state X as a merchant vessel. 

(b) The Dobo, a merchant vessel of state D, has taken 
a cargo in state E and delivered it at a port of state Y 
and then has taken on a new cargo there and delivered 
a part of this cargo at sea to a supply ship of the navy 
of Y. 

State X protests to state E and to other neutral states 
demanding that the Dobo be treated as an auxiliary 
of the navy of Y. 

l 



2 VESSELS AND NEUTRAL PORTS 

(c) The Xib% a vessel of war of state X, enters a 
naval port of state E in distress because short of fuel. 
The port is closed to commerce. The commander of the 
Xtbi requests fuel for voyage to the nearest port of 
state X. 

What would be the lawful action in each case \ 

solution 

(a) 1. The Xara may remain in the port of neutral 
state B for 24 hours unless state B has previously issued 
special regulations. During the 24-hour sojourn the 
Xara may make such repairs as possible, using the per- 
sonnel and material on board. After 24 hours the Xara 
should be interned. 

2. Unless neutral state B has previously issued spe- 
cial regulations, it may not decline to allow to the Aba 
the usual privileges granted to neutral merchant vessels 
in its harbors. 

3. If neutral state B and belligerent state X are not 
bound by special treaty agreement, and if state B has 
not previously issued special regulations, state B may 
legally decline to admit, except under the rules for 
vessels of war, the Xebe which has been transformed 
irom a supply to a merchant vessel. 

(b) There is no obligation on the part of state E or 
other neutral states to treat the Dobo as an auxiliary 
of the navy of state Y. 

(c) If the Xibi, a vessel of war of state X, enters in 
distress a closed port of neutral state E> the Xibi should 
be interned or may be allowed or required to depart 
under pledge to take no further part in the war. 

NOTES 

Value of preliminary agreements. — While it is pos- 
sible to regard the Hague Conventions of 1899 and 
1907 and other conventions as falling short of stating 
the principles which might be in accord with justice. 



THREE-MILE LIMIT 6 

it is essential to consider that the principles of justice 
are not yet standardized, and what seems to one state as 
just may not be so regarded by other states, and what 
is recognized at one period as just may not have the 
same appeal under other conditions or at another period. 
It may be much more important that some rules of 
conduct which are generally accepted be agreed upon in 
advance, though these are not ideal, rather than that no 
agreement exist upon any aspect of a subject, and the 
whole matter be the subject of controversy in a time of 
crisis when any agreement even upon minor points is 
difficult. 

The value of agreements in advance may well be illus- 
trated by the settlement of the Dogger Bank incident in 
1904 through a Commission of Inquiry provided for in 
Hague Convention I of 1899. This convention was not 
ideal in its provisions, and was after this test much 
modified in 1907, but it did offer a means for settling 
a difficulty to the satisfaction of the parties at a time 
when relations were severely strained and when, if the 
convention had not already existed, it would have been 
doubtful whether negotiations after the event would 
have been successful. 

Three-mile limit. — While much wider limits than 3 
miles have been claimed for jurisdiction of the coast 
state over marginal seas, yet 3 miles at least is usually 
recognized as a minimum. During the World War some 
states, accustomed to claim in time of peace wider limits, 
renounced these claims when the duties of maintaining 
neutrality in the wider areas became too burdensome. 
No state has seemed inclined to claim a belt of jurisdic- 
tion in the marginal sea of less than 3 miles. There is 
a general acceptance of the right of a shore state to 
exercise jurisdiction beyond 3 miles for revenue and 
other national purposes. Man}' treaties and domestic 
laws prescribe 3 miles as the recognized limit of juris- 
diction. The Convention Relating to the Nonfortifica- 



4 VESSELS A XI) NEUTRAL PORTS 

tion and Neutralization of the Aaland Islands, Geneva, 
October 20, 1921, provides that: 

"The territorial waters of the Aaland Islands are considered 
T.» extend tor a distance of three marine miles from the low- 
water mark on the islands, islets, and reefs not permanently 
submerged." (9 L. N. T. S., p. 212.) 

Submerged reefs outside the 3-mile limit are usually 
considered to be in the high sea and have been so re- 
garded in international negotiations though wider 
claims have been made (23 American Journal of Inter- 
national Law, Spec. Sup. (1929), pp. 275 et scq.). 

Repairs in neutral port. — When vessels were slow 
sailing and dependent upon winds and tides, ordinary 
repairs essential to seaworthiness were easily deter- 
mined and the line between damages due to natural 
causes and those due to acts of the enemy were usually 
distinguishable. With the introduction of aids to navi- 
gation which made vessels largely independent of winds 
and tides, differences of opinion as to the extent and 
character of repairs in neutral ports on vessels of war 
became common. The old expression "perils of the sea" 
required new interpretations, but usually was held to 
cover cases of distress similar to those granted to sailing- 
vessels. 

The 24-hour sojourn would rarely be sufficient for 
repairs and was a comparatively recent restriction, 
though short sojourns were not questioned unless resort 
to shore resources for aid became necessary. It was 
generally regarded as unnecessary for the neutral au- 
thorities to concern themselves with what went on 
within a vessel of war during its lawful sojourn in 
port provided it did not involve aid in the way of mate- 
riel or personnel from the shore, i. e., so far as the vessel 
of war was a self-sufficient unit, it was free of neutral 
port regulations. The cause of damages which might 
be repaired by the ship itself within the lawful period 
of its sojourn was not regarded as a concern of the 



SOJOURN 5 

neutral-port authorities. The reason for sojourn be- 
yond the 24-hour limit would be a matter to be pre- 
sented to the neutral for consideration as would the 
reason for requesting aid from shore. 

The ground for extension of the period of sojourn 
or other special privileges came in a general way to be 
stated as for repairs due to damages from natural causes 
in distinction from damages due to combat or acts of 
the enemy. As was stated in the American case in dis- 
cussing the rules of the Treaty of Washington, 1871. 

"The repairs that humanity demand can be given, but no re- 
pairs should add to the strength or efficiency of a vessel, beyond 
what is absolutely necessary to gain the nearest of its own 
ports." (1931 Naval War College, International Law Situa- 
tions, p. 88; I Papers relating to the Treaty of Washington,, 
p. 71.) 

"As the vessel enters the port, so is she to leave it, without 
addition to her effective power of doing injury to the other 
belligerent." (Ibid.) 

Hague Convention XIII, 1907 . — Article I of Hague 
Convention XIII of 1907 states the general principle of 
the relations of belligerents to neutrals in time of naval 
war as follows : 

"Belligerents are bound to respect the sovereign rights of 
neutral Powers and to abstain, in neutral territory or neutral 
waters, from all acts which would constitute, on the part of 
the neutral Powers which knowingly permitted them, a non- 
fulfillment of their neutrality." 

Article 17 applies particularly to repairs in neutral 
ports : 

"In neutral ports and roadsteads belligerent ships of war can 
carry out only such repairs as are absolutely necessary to render 
them seaworthy, and can not add in any manner whatsoever 
to their fighting force. The neutral authorities shall decide what 
repairs are necessary, and these must be carried out with the 
least possible delay." 

Views on sojourn. — There have been two points of 
view particularly emphasized which appeared from time 



6 VESSELS AND NEUTRAL PORTS 

to time in discussions of the Institute of International 
Law and the Second Hague Conference of 1907. 

Some favored the same treatment in a neutral port 
for a vessel of war and a merchant vessel provided the 
vessel of war did not enter the neutral port as a part 
of a naval operation. It was very properly objected 
that for the neutral authorities to be called upon to 
determine what acts of a vessel of war or vessels of war 
of belligerents were connected with naval operations 
would be to put upon such authorities an impossible 
task and to lay them open to recriminations from both 
parties. It was also shown that it would be presumptu- 
ous to assume that in time of war any movement of a 
vessel of war of a belligerent was not connected with 
naval operations. 

The second point of view was based on an admission 
that the responsibilities of the neutral should be de- 
fined and that the minimum of responsibility in dis- 
crimination should rest upon neutral authorities. This 
had already been set forth in the 24-hour rule of sojourn 
with rules for departure of opposing belligerents. The 
taking of fuel was more clearly defined though rules of 
the Hague Convention XIII left opportunity for wide 
difference in practice. 

It was admitted that a state might close its ports to 
vessels of war or make such regulations as it saw fit. 
It was recognized that it would be impossible in most 
cases for the neutral to determine the treatment to be 
accorded to a vessel of war on the basis of the cause of 
its entrance for this would imply a knowledge not 
usually obtainable, and if obtainable would make judg- 
ment upon it open to difference of opinion. What might 
seem a military reason to the neutral authorities might 
seem to the belligerent to be without military signifi- 
cance beyond that of every movement of the vessel. The 
general rule, therefore, which gained in favor was that 
entrance and sojourn of 24 hours without use of port 



REPAIRS 7 

facilities other than refueling and taking on of sup- 
plies would be allowed. Internment for the duration 
of the war would follow unless there was special ground 
not due to military causes for granting a longer period 
of sojourn. 

Those principles were particularly applied and be- 
came more clearly defined during the Russo-Japanese 
War (1904 Naval War College. International Law Situ- 
ations, pp. 79-93 ; 1905 Naval War College, International 
Law Topics, pp. 154^170). 

The reasons for granting any period of sojourn or a 
period beyond 24 hours is now considered to be within 
the competence of the neutral authorities, and these au- 
thorities must act in such manner as not to make the 
port liable to be regarded as an enemy base, and must 
use due diligence in preventing such use while not deny- 
ing the treatment to which belligerents are entitled 
under the principles of humanity. 

Regulations on repairs. — States have from time to 
time made pronouncements in regard to repairs. After 
the Hague conventions, Denmark, Norway, and Sweden 
jointly agreed upon rules of neutrality, December 21. 
1912, which were separately adopted. 

Article 5 (a) pruvided that — 

"In the ports or roadsteads of the kingdom, belligerent war 
Tessels cau repair their damages only to the extent necessary 
for the security of navigation, and they can not increase their 
military force in any manner whatsoever. The authorities of 
the kingdom will indicate the nature of the repairs to be made. 
The repairs should be completed as rapidly as possible." (1917 
Naval War College, Int. Law Documents, p. 185.) 

The Habana Convention, 1928, on Maritime Neutral- 
ity, article 9, states that — 

"Damaged belligerent ships shall not be permitted to make 
repairs in neutral ports beyond those that are essential to the 
continuance of the voyage and wiiich in no degree constitute an 
increase in its military strength. 

"Damages which are found to have been produced by the 
enemy's fire shall in no case be repaired. 



8 VESSELS AND NEUTRAL PORTS 

"The neutral state shall ascertain the nature of the repairs 
to be made and will see that they are made as rapidly as pos- 
sible." (Report, Delegates of the United States, Sixth Interna- 
tional Conference of American States, p. 210.) 

Of this Habana convention the report said that the 
original draft before the subcommittee had contained 
some provisions "intended to change existing practice 
in the interest of neutrals." Objections were made to 
"variations from general usage." Desire was expressed 
that the proposals should conform to the practice of 
nations. 

"The result was a modified draft, in large measure that of the 
thirteenth convention of the Second Hague Peace Conference of 
1907, with sundry modifications and additions in order to take 
note of the measures which neutrals had taken to preserve their 
lights during the World War. As finally drafted and originally 
adopted, the project presupposed a war, in which the American 
Republics would be neutral. For this reason it was indispensable 
that the practice of nations should lie strictly observed, a l it 
would be undesirable on the part of the American states to 
attempt to change the general rights of all neutrals by a special 
agreement of their own." (Ibid., p. 18.) 

Brazil's rules on repairs* 1914. — The General Rules 
of Neutrality issued by Brazil, August 4, 1914, provided 
for sojourn in Brazilian port longer than 24 hours in 
case of urgent need. 

"Art. 7th. * * * 

"The case of urgent need justifies the staying of the warship 
or privateer at the port longer than twenty-four hours : 

"1. If the repairs needed to render the ship seaworthy can- 
not be made within that time; 

"2. In case of serious danger on account of stress of weather ; 

"3. When threatened by some enemy craft cruising off the 
port of refuge. 

"These three circumstances will be taken into consideration 
by the Government in granting a delay for the refugee ship." 
******* 

"Art. 13th. The belligerent warships are allowed to repair 
their damages in the ports and harbors of Brazil only to the 
extent of rendering them seaworthy, without in any wise 
augmenting their military power. 



REPAIRS 9 

"The Brazilian naval authorities will ascertain the nature and 
extent of the proper repairs, which shall be made as promptly 
as possible." (1916 Naval War College, International Law 
Topics, p. 10.) 

Statement of Professor Hyde. — Professor Hyde 
points out that the rules in regard to internment leave 
a degree of uncertainty in regard to the nature of re- 
pairs which may be permitted in a neutral port, saying : 

*Tt should be observed that the Hague Convention makes no 
distinction or limitation with reference to the causes of damage. 
A neutral State is thus regarded as free from an obligation 
to prevent the making of repairs necessitated by the conduct of 
the opposing belligerent, provided they merely serve to effect 
seaworthiness. In a strict sense, any repairs productive of sea- 
worthiness, irrespective of the cause of damage, necessarily 
increase the fighting force of the recipient if it is otherwise 
capable of engaging in hostilities. To render, for example, an 
armed submarine fit to keep the sea, or to reach its nearest 
home port, may suffice also to enable the vessel to resume the 
offensive with the full measure of its strength. 

"In brief, the existing rules draw a line of distinction which, 
at the present time, [1922] appears to be insufficient to prevent 
a neutral port offering permitted and requisite repairs from be- 
coming in fact a base of operations. The question presents itself, 
therefore, whether in any reconsideration of existing regulations 
and of the practice growing out of them, maritime States should 
endeavor to cut down the privileges of repair, and proportion- 
ally lessen the opportunity for neutral territory so to augment 
the fighting power of belligerent ships." (2 Hyde. International 
Law chiefly as interpreted and applied by the United States, 
p. 731.) 

(a) (1) The "Xatm" in port of B. — It is generally 
held that a submerged reef more than 3 miles off the 
coast is in the high seas. Some states have maintained 
in time of peace wider claims to jurisdiction, but in 
time of war the obligations become more burdensome. 
A state which may claim a wider jurisdiction for fish- 
eries, revenue, or other reasons would often claim three 
mile jurisdiction only under war conditions. Compli- 
cations may arise when contiguous states claim different 
limits, as belligerents may have to accommodate them- 

81178—36 2 



10 VESSELS AND NEUTRAL PORTS 

selves to variations which seem to them arbitrary and 
which may cause unnecessary friction. 

In the case of the Xara, state B in admitting the 
cruiser to its port without immediate internment shows 
that it does not regard the engagement at the time the 
Xara runs upon the reef as within its limits. 

The Xara was still pursued by vessels of State Y 
when it escaped to the port of State B. The use of 
this port of neutral State B as a port of refuge to 
escape capture would make the Xara liable to intern- 
ment. Article 2-2 of the General Rules of Neutrality 
issued by Brazil, August 4, 1914, states, "Belligerent 
warships that are chased by the enemy, and, avoiding 
attack, seek refuge in a Brazilian port will be detained 
there and disarmed."' (1916, Naval War College, Inter- 
national Law Situations, p. 13.) This rule does permit 
departure of vessels if their officers pledge not to engage 
in war operations. The Danish order of December 20, 
1912, in the article relating to repair reads. "All repair 
relating to the fighting capacity of the vessel is pro- 
hibited." (Ibid., p. 51.) Rules similar to the above 
were issued by other states during the World War. 

For repairs beyond these which could be made within 
24 hours and for repairs involving use of resources from 
neutral sources, prior appro.val and authorization would 
be required, and for such aid the neutral would assume 
the responsibility. Matters relating solely to the internal 
economy of a vessel of war of a belligerent during its 
24-hour sojourn are within the control of the com- 
mander. 

Neutral and belligerent rights. — The rights and ob- 
ligations of belligerents toward neutrals are not the 
same as or correlative to the rights and obligations of 
neutrals toward one another. The fact that a bellig- 
erent may have a right to capture or destroy a vessel 
under certain circumstances places no obligation upon 
a neutral to take any action in regard to this vessel. 



NORWEGIAN OPINION 11 

It has often happened that a belligerent has sug- 
gested that neutrals take such action as would facilitate 
the conduct of war against an opponent, e. g., restrict 
the movements or acts of enemy vessels. 

On August 27, 1918, the Secretary of State of the 
United States in a communication to the Charge in 
Norway made a suggestion to the Norwegian Govern- 
ment as to the regulation of the use of Norwegian 
territorial waters, saying: 

"The Norwegian Government cannot be unmindful of the 
fact that in the prosecution of the war being waged against 
the Central Powers the Government of the United States is 
transporting across the Atlantic Ocean hundreds of thousands 
of troops and immense quantities of supplies and munitions 
for their maintenance and use. Possessed of this knowledge 
the Norwegian Government must perceive that so long as Ger- 
man submarines are permitted to pass unmolested through the 
coastal waters of Norway into the Atlantic Ocean from the 
Nforth Sea, the military forces of the United. States, the 
supplies necessary for their subsistence, and the munitions 
required for their operations will be, while upon the high seas, 
in serious danger of submarine attack and destruction. 

"In view of the menace to American interests which will 
result from the free passage of submarines through the terri- 
torial waters of Norway, the Government of the United States 
believes that the Norwegian Government will realize the obliga- 
tion which rests upon it to prevent by every means in its 
power the passage of German submarines through waters within 
the jurisdiction of Norway. Furthermore it cannot fail to 
realize that if Norwegian waters are used by belligerent sub- 
marines as a rendezvous whence they can freely pass into the 
Atlantic Ocean for hostile purposes the waters so used may 
justly be considered a base of naval operations, the establish- 
ment of which within Norwegian jurisdiction the Government 
of the United States believes to be entirely contrary to the 
will and intention of the Government of Norway. 

"In the circumstances the Government of the United States 
most earnestly urges the Norwegian Government to take all 
necessary steps to prevent a situation which might cause serious 
embarrassment to both Governments which would be deeply 
regretted by the Government of the United States as it has 
only the most friendly feeling for the Government and people 
of Norway and is desirous to prevent as well as to remove all 



VESSELS AND NEUTRAL PORTS 

causes of differences affecting the good relations of the two 
countries in their intercourse with each other." (Foreign Rela- 
tions, U. S., 1918, Supplement I, volume II, p. 1783.) 

In presenting the suggestion, the Charge took occa- 
sion to emphasize several points, and referring to the 
passage of submarines said, 

"(3) That as stated in my note the United States believed 
Norwegian territorial waters could justly be regarded as a base 
of naval operations if they are used by German submarines as 
a rendezvous, whence the latter can freely pass into the Atlantic- 
Ocean for hostile purposes. Minister for Foreign Affairs rather 
questioned the valadity of this statement ; I said that so long 
as the Norwegians failed to prevent the passage of submarines 
through coastal waters, there was no essential difference be- 
tween the situation created for German submarines in Nor- 
wegian waters by the protection afforded them by our respect 
for Norwegian neutrality, which w r as [restraining] us, and the 
situation in which submarines found themselves when under the 
protection of German fortresses and mine fields at their German 
base. Minister for Foreign Affairs admitted the force of the 
contention somewhat reluctantly." (Ibid., p. 1784.) 

In the course of a reply on September 28, 1918, tlip 
Norwegian Minister of Foreign Affairs said : 

"The thirteenth Hague convention of 1907 provides expressly 
in article 10 that a country's neutrality is not called in question 
by the mere fact that belligerent war vessels are permitted to 
pass through its territorial waters. No exception is made in 
this provision of the convention for submarine boats. The fact 
that Norway by a domestic regulation has conditionally forbid- 
den such war vessels to pass through her territorial waters 
does not in any respect change the position of Norway under 
international law and gives the belligerents no right to make a 
demand on the Norwegian Government which is not based on 
general rules of international law. The regulation in question, 
as stated in my note of August 20, was called forth exclusively 
by consi deration of Norway's own interests, and just as a simi- 
lar regulation has [not] been made by all other neutral states. 
so Norway would also be fully entitled by international law to 
revoke this regulation if, according to circumstances, at a given 
time Norway should no longer find it compatible with her 
interests. 



AMERICAN TRADE POLICY 13 

"There is no information before the Norwegian Government 
that Norwegian territorial waters are being used by foreign sub- 
marines as a 'rendezvous'. None of the circumstances surround- 
ing the cases of sojourn of submarines in territorial waters 
which the Norwegian naval authorities have observed or been 
informed of or which are brought by the British Government 
confidentially to the knowledge of the Norwegian Government, 
indicate that these cases involved anything else than passage." 
(Ibid., p. 1786.) 

Later the Norwegian Government announced that it 
had mined its territorial waters. 

Attitude of the United States, 191J+. — By a circular of 
the Department of State of October 15, 1914, replying 
to queries upon the right to supplying articles of war, 
the attitude of the Government was stated. 

"In the first place it should be understood that, generally 
speaking, a citizen of the United States can sell to a belligerent 
government or its agent any article of commerce which he 
pleases. He is not prohibited from doing this by any rule of 
international law, by any treaty provisions, or by any statute 
of the United States. It makes no difference whether the 
articles sold are exclusively for war purposes, such as firearms, 
explosives, etc., or are foodstuffs, clothing, horses, etc., for the 
use of the army or navy of the belligerent. 

"Furthermore, a neutral government is not compelled by in- 
ternational law, by treaty, or by statute to prevent these sales 
to a belligerent. Such sales, therefore, by American citizens do 
not in the least affect the neutrality of the United States. 

"It is true that such articles as those mentioned are con- 
sidered contraband and are, outside the territorial jurisdiction 
of a neutral nation, subject to seizure by an enemy of the pur- 
chasing government, but it is the enemy's duty to prevent the 
articles reaching their destination, not the duty of the nation 
whose citizens have sold them. If the enemy of the purchasing 
nation happens for the time to be unable to do this that is for 
him one of the misfortunes of war; the inability, however, im- 
poses on the neutral government no obligation to prevent the sale. 

"Neither the President nor any executive department of the 
Government possesses the legal authority to interfere in any way 
with trade between the people of this country and the territory 
of the belligerent. Tiiexe_i^H3tr-«trt-^f~^ong-r^s^-eon^e«4ng^^uch 
of-tbe-belligeFent. There is no act of Congress conferring such 
authority or prohibiting traffic of this sort with European nations, 
although in the case of neighboring American Republics Con- 



14 VESSELS AND NEUTRAL PORTS 

gress has given the President power to proclaim an embargo 
on arms and ammunition when in his judgment it would tend 
to prevent civil strife.*" (1916 Naval War College, International 
Law Topics, p. 95.) 

British position, February 10, 1913. — In a long note 
of Sir Edward Grey, of February 10, 1915, there was 
an attempt to justify the detention of American cargoes 
destined for neutral European ports. In this note was 
foreshadowed the attitude which subsequent!}' took form 
in retaliatory measures. Following explanation of 
many British acts, the note concludes : 

"I have given these indications of the policy which we have 
followed, because I cannot help feeling that if the facts were 
more fully known as to the efforts which we have made to 
avoid inflicting any avoidable injury on neutral interests, many 
of the complaints which have been received by the administra- 
tion in Washington, and which led to the protest which your 
excellency handed to me on the 28th December would never 
have been made. My hope is that when the facts which I have 
set out above are realized, and when it is seen that our naval 
operations have not diminished American trade with neutral 
countries, and that the lines on which we have acted are con- 
sistent w r ith the fundamental principles of international law, it 
will be apparent to the Government and people of the United 
States that His Majesty's Government have hitherto endeavoured 
to exercise their belligerent rights with every possible considera- 
tion for the interests of neutrals. 

"It will still be our endeavour to avoid injury and loss to 
neutrals, but the announcement by the German Government of 
their intention to sink merchant vessels and their cargoes with- 
out verification of their nationality or character, and without 
making any provision for the safety of noncombatant crews or 
giving them a chance of saving their lives, has made it necessary 
for His Majesty's Government to consider what measures they 
should adopt to protect their interests. It is impossible for one 
belligerent to depart from rules and precedents and for the other 
to remain bound by them." (1915 U. S. Foreign Relations, 
Supplement, p. 233.) 

Acts of 1935 and 1936.— On August 31, 1935, a joint 
resolution of Congress was adopted: 

"Providing for the prohibition of the export of arms, ammuni- 
tion, and implements of war to belligerent countries ; the prohi- 



AMERICAN ATTITUDE, 19 3 5-3 6 15 

bition of the transportation of arms, ammunition, and imple- 
ments of war by vessels of the United States for the use of 
belligerent states ; for the registration and licensing of persons 
engaged in the business of manufacturing, exporting, or im- 
porting arms, ammunition, or implements of war ; and restrict- 
ing travel by American citizens on belligerent ships during 
war." 

Detailed regulations were made for carrying into 
effect this resolution. 

Another joint resolution, approved February 29, 1936, 
elaborated the resolution of August 31, 1935, and ex- 
tended the period of the operation to May 1, 1937. 

Changed American attitude, 1935-36. — The President 
of the United States had on October 5, 1935, declared 
that a state of war unhappily existed between Ethiopia 
and the Kingdom of Italy" and under the joint resolu- 
tion of February 29, 1936, he proclaimed on the same 
date "that a state of war unhappily continues to exist 
between Ethiopia and the Kingdom of Italy." 

Under this proclamation persons within the juris- 
diction of the United States were to abstain from export 
of arms, ammunition, or implements of war to Ethiopia 
or Italy or Italian possession or to a neutral port for 
transshipment. 

The changed attitude of the Government of the 
United States is evident in the detailed list of articles 
named under the categories of "arms, ammunition, and 
implements of war." This list is as follows: 

"Category I 

"(1) Rifles and carbines using ammunition in excess of caliber 
.22, and barrels for those weapons; 

"(2) Machine giins, automatic or autoloading rifles, and ma- 
chine pistols using ammunition in excess of caliber .22, and 
barrels for those weapons ; 

"(3) Guns, howitzers, and mortars of all calibers, their 
mountings and barrels; 

"(4) Ammunition in excess of caliber .22 for the arms enumer- 
ated under (1) and (2) above, and cartridge cases or bullets 
for such ammunition ; filled and unfilled projectiles or forgings 



16 VESSELS AND NEUTRAL PORTS 

for such projectiles for the arms enumerated under (3) above; 
propellants with a web thickness of 0.015 inch or greater for 
the projectiles of the arms enumerated under (3) above; 

"(5) Grenades, bombs, torpedoes and mines, filled or unfilled, 
and apparatus for their use of discharge; 

"(0) Tanks, military armored vehicles, and armored trains. 

"Category II 

•"Vessels of war of all kinds, including aircraft carriers and 
submarines. 

"Category III 

"(1) Aircraft, assembled or dismantled, both heavier and 
lighter than air, which are designed, adapted, and intended for 
aerial combat by the use of machine guns or of artillery or for 
the carrying and dropping of bombs, or which are equipped with, 
or which by reason of design or construction are prepared for, 
any of the appliances referred to in paragraph (2) below; 

"(2) Aerial gun mounts and frames, bomb racks, torpedo 
carriers, and bomb or torpedo release mechanisms. 

"Category IV 

"(1) Revolvers and automatic pistols using ammunition in 
excess of caliber .22; 

"(2) Ammunition in excess of caliber .22 for the arms enumer- 
.* ted under (1) ahove, and cartridge cases or bullets for such 
ammunition. 

"Category V 

"(1) Aircraft, assembled or dismantled, both heavier and 
lighter than air. other than those included in Category III; 

"(2) Propellers or air screws, fuselages, hulls, wings, tail 
units, and under-carriage units; 

"(3) Aircraft engines, assembled or unassembled. 

"Category VI 

(1) Livens, projectors, and flame throwers; 

"(2) Mustard gas (dichlorethylsulphide), lewisite (chloro- 
vinyldichlorarsine and dichlorodivinylchlorarsine) , ethyldichlor- 
arsine, methyldichlorarsine, ethyliodoacetate, brombenzylcyanide, 
dipbenolchloiarsine, and dyphenolcyanoarsine. 

"And I do hereby enjoin upon all officers of the United States, 
charged with the execution of the laws thereof, the utmost 
diligence in preventing violations of the said joint resolution, and 



CARGOES FOR BELLIGERENTS 17 

this my proclamation issued thereunder, and in bringing to trial 
and punishment any offenders against the same." 

Belligerent cargoes. — Ordinarily a neutral state is 
concerned with clearance of vessels loaded in its ports 
for belligerent destinations. The use of its ports as 
sources of supply to belligerents may under certain cir- 
cumstances constitute those ports bases for belligerent 
operations which would make the neutral state liable. 
Cargoes bound for foreign neutral ports from a foreign 
neutral port regardless of the nature of the cargo, if not 
under some domestic restriction, as perhaps opium in 
some states, are not liable to interference or delay and 
the neutral carrier has no responsibility other than for 
port regulations. 

The act of March 4, 1915, by which the United States 
regulated the use of its ports, empowered the President 
to direct that clearance be withheld — 

"from any vessel, American or foreign, which he has reasonable 
cause to believe to be about to carry fuel, arms, ammunition, 
men, or supplies to any warship, or tender, or supply ship of a 
belligerent nation, in violation of the obligations of the United 
States as a neutral nation." (38 Stat., Pt. I, 1926; 1929 Naval 
War College, International Law Situations, p. 136.) 

Where the sole question in regard to treatment of a 
neutral vessel relates to its cargo, the destination is the 
essential factor. 

In a memorandum of the Department of State of 
September 19, 1914, it was said : 

"6. A merchant vessel, laden with naval supplies, clearing 
from a port of the United States for the port of another neutral 
nation, which arrives at its destination and there discharges 
its cargo, should not be detained if, on a second voyage, it 
takes on board another cargo of similar nature. 

"In such a case the port of the other neutral nation may be 
a base for the naval operations of a belligerent. If so, and 
even if the fact is notorious, this Government is under no obli- 
gation to prevent the shipment of naval supplies to that port. 
Commerce in munitions of war between neutral nations cannot 
as a rule be a basis for a claim of unneutral conduct, even though 



18 VESSELS AND NEUTRAL PORTS 

there is a strong presumption or actual knowledge that the neu- 
tral state, in whose port the supplies are discharged, is per- 
mitting its territory to be used as a base of supply for belliger- 
ent warships. The duty of preventing an unneutral act rests 
entirely upon the neutral state whose territory is being used 
as such a base. 

"In fact this principle goes further in that, if the supplies were 
shipped directly to an established naval base in the territory or 
under the control of a belligerent, this Government would not 
be obligated by its neutral duty to limit such shipments or detain 
or otherwise interfere with the merchant vessels engaged in 
that trade. A neutral can only be charged with unneutral 
conduct when the supplies, furnished to a belligerent warship, 
are furnished directly to it in a port of the neutral or through 
naval tenders or merchant vessels acting as tenders departing 
from such port." (1916 Naval War College, International Law 
Topics, p. 92.) 

Public property on vessel. — It might be possible for 
the entire cargo of a merchant vessel to belong to the 
state whose flag it is flying or to another state. Certain 
states have considered private property in the commonly 
accepted sense as no longer recognized. The Union of 
Socialist Soviet Republics, while not recognizing some 
of the widely accepted doctrines in regard to property, 
lias by reciprocal treaties agreed to act in accord with 
international law in treatment of property (Taracouzio, 
Soviet Union and International Law, chap. IX). 

Even in the World War and earlier, vessels were char- 
tered entire by states and loaded with cargoes belong- 
ing to the state. The unratified declaration of London, 
1909. in article 46 provided for the liability of a neutral 
vessel chartered entire by a belligerent government stat- 
ing that it should be the same as a merchant vessel of 
the enemy. The report of the conference explains this 
clause : 

"The vessel is chartered entire by the enemy Government. It 
is then wholly at disposal of the Government, which can use her 
for different purposes more or less directly connected with the 
war, notably for purposes of transsudation ; such is the position 
of colliers which accompany a belligerent fleet. There will often 
be a charter-party between the belligerent Government and the 



HABANA CONVENTION, 19 2 8 19 

owner or master of the vessel ; but it is only a question of proof. 
The fact of the charter of the vessel entire suffices, in whatever 
way it may be established." (1916 Naval War College, Inter- 
national Law Topics, p. 109.) 

While so far as the belligerent is concerned, the action 
of a neutral vessel chartered entire by an opposing bel- 
ligerent would justify treatment of the vessel as an 
enemy merchant vessel, it has not been generally held 
that any neutral would be placed under special obliga- 
tions as regards such a vessel. The neutral state whose 
flag the chartered vessel is entitled to fly may withdraw 
its protection from the vessel, but neither that state nor 
any other state was committed to taking any special 
action on account of unneutral service by the vessel. 
The right of a belligerent to prevent or to penalize an 
act of a neutral national or vessel does not imply an 
obligation on the part of a neutral state to prevent 
the act. 

Article 12, Hob ana Convention on Maritime Neutral- 
ity. — Article 12 of the Habana Convention on Mari- 
time Neutrality, 1928, is under the section on duties 
and rights of belligerents and therefore relates pri- 
marily to the action of belligerents. This article 
provides that — 

"The neutral vessel shall be seized and in general subjected 
to the same treatment as enemy merchantmen : 

"(a) When taking a direct part in the hostilities; 

"(b) When at the orders or under the direction of an agent 
placed on board by an enemy government ; 

"(c) When entirely freight-loaded by an enemy government; 

"(d) When actually and exclusively destined for transport- 
ing enemy troops or for the transmission of information on 
behalf of the enemy. 

"In the cases dealt with in this article, merchandise belong- 
ing to the owner of the vessel or ship shall also be liable to 
seizure." (Report, Delegates of the United States; Sixth Inter- 
national Conference of American States, p. 220.) 

These provisions are such as would apply to vessels 

engaged in unneutral service and are such as have been 
applied. 



20 VESSELS AND NEUTRAL PORTS 

Article 22 of the same convention provides that : 

"Neutral states are not obligated to prevent the export or 
transit at the expense of any one of the belligerents of arms, 
monitions and in general of anything which may be useful to 

their military forces. 

'•Transit shall be permitted when, in the event of a war 
between two American nations, one of the belligerents is a 
Mediterranean country, having no other means of supplying 
itself, provided the vital interests of the country through which 
transit is requested do not suffer by the granting thereof." 
(Ibid., p. 222.) 

(a) (2) The "Aha" in part of B. — There has been 
some question as to the interpretation of the 1928 Ha- 
bana Convention on Maritime Neutrality, article 12. 
This article being under Section II, Duties and Rights 
of Belligerents and not under Section III, Rights and 
Duties of Neutrals applies to treatment by a belligerent 
of a neutral vessel as an enemy merchant vessel "when 
entirely freight -loadel by an enemy government." 

This provision is similar to provisions in article 46 
of the unratified declaration of London of 1909. but 
this article referred to the treatment of a neutral vessel 
by a belligerent and not to the treatment of a vessel of 
one neutral by another neutral. 

The fact that two states are at Avar does not put a 
neutral state under obligation, nor does it give a neu- 
tral state the right to interfere with the commerce of 
another neutral state. The Aba, a neutral merchant 
vessel of state A. entirely loaded with freight belonging 
to state X. would be liable outside neutral jurisdiction 
to interference by state Y, but would not be in the 
category of vessels of war. Its cargo bound for state 
A has a neutral destination and is, so far as state B 
i> concerned, lawful commerce. 

Transformation from war to merchant vessel. — In 
early maritime wars it w r as often difficult to distinguish 
between vessels which might engage in war and those 
which were engaged in purely peaceful undertakings. 



CONVERSION OF MERCHANT VESSELS 21 

Armed merchant vessels and privateers were the entire 
complement of some fleets sailing against an enemy. 
The transition to the type of vessel solely designed for 
war purposes was slow and the professional training of 
the personnel for these vessels has been a late develop- 
ment. 

Naturally the transformation from merchant vessel 
to vessel of war or from vessel of war to merchant vessel 
would not be a problem till the characteristics of such 
vessels were clearly marked. The distinction in service 
and in treatment became more essential as the status of 
neutrality developed. The neutral state was after a 
time regarded as responsible for the conduct of vessels 
under belligerent flags while such vessels were in neutral 
ports. It was, therefore, essential that the neutral au- 
thorities be able to distinguish between vessels of war 
and merchant vessels, since neutral obligations differed 
in regard to these classes, and the privileges of these 
vessels in a neutral port differed. 

Consideration at the Naval War College. — In 1906, 
before the Second Hague Peace Conference of 1907, 
and after the experiences of the Russo-Japanese War 
of 1904-5, the matter of need of a clearly established 
character particularly for subsidized, auxiliary, and 
other vessels which might be of special service when 
placed under naval control, was discussed before the 
Naval War College. The conclusions of the Naval War 
College discussion was that "the use for all purposes of 
naval warfare, of auxiliary, subsidized, or volunteer 
vessels regularly incorporated in the naval forces of a 
country, is in accord with general opinion and prac- 
tice, and that this addition to their regular naval forces 
in time of war is contemplated by nearly all if not 
all the principal maritime nations. " Convention VII, 
which was drafted at the Second Hague Peace Con- 
ference but not signed by the America delegates, recog- 
nized that it was probable that merchant vessels would 



22 VESSELS AND NEUTRAL PORTS 

be incorporated in the fighting fleet in time of war, 
and that it was essential that the character of such 
vessels should be established both for belligerents and 
for neutrals. There was, however, wide divergence of 
view among the states represented at The Hague in 
1907. Austria, France, Germany, and Russia were 
among the states upholding the right of conversion at 
sea, while Great Britain was among the states opposing 
such conversion. 

Article XIV of the Washington Treaty of 1922 on the 
Limitation of Naval Armament definitely refers to 
preparations made "In merchant ships in time of peace 
for the installation of warlike armaments for the pur- 
pose of converting such ships into vessels of war." This 
article limits such preparation to the '''necessary stiffen- 
ing of decks for the mounting of guns not exceeding 6- 
inch caliber", and is binding only on the contracting 
parties for the duration of the treaty. Conversion of 
merchant vessels to warlike use is, therefore, now gen- 
erally recognized by maritime states as lawful, and the 
only problem is one of degree of limitation on srch con- 
version. 

Discussion at The Hague, 1907. — In the discussion at 
the Second Hague Peace Conference, 1907, there was 
general assent to the right of a belligerent to convert 
merchant vessels into vessels of war as analagous to en- 
rolling militia in its forces on land. It was also unani- 
mously agreed that proper measures for responsible gov- 
ernment control and identification should be taken. 
Very early in the Conference (June 28, 1907) it was pro- 
posed by Dr. Lammasch of Austria-Hungary that the 
"conversion shall be permanent and reconversion into a 
merchant ship shall be forbidden". Later Dr. Lam- 
masch explained that conversion should be for the 
period of the war and reconversion should be prohibited. 

Regarding conversion of a merchant vessel to a vessel 
of war in a neutral port, Lord Reay, of Great Britain,, 
said, on July 12, 1907, 



HAGUE DISCUSSION, 19 7 23 

"A vessel which should enter a neutral port simply as a vessel 
belonging to the merchant marine and which should leave the 
port as a war-ship with the necessary commission would have 
undergone complete conversion in neutral waters and would 
have increased its value as a fighting unit. But a neutral may 
not, without violating the principles of neutrality, permit a 
belligerent to increase its value as a fighting vessel in neutral 
territorial waters. It follows, therefore, that a neutral State 
may not permit, under penalty of incurring the same reproach, 
a vessel which enters its territorial waters as a noncombatant 
to quit those waters as a war-ship duly authorized by a bellig- 
erent State and equipped to take part in hostilities. 

"But if the neutral is bound to see that its neutrality is 
respected in its territorial waters, the belligerent is likewise 
bound to abstain from violating that neutrality. It is therefore 
clear that, if the fact of a neutral State's permitting a belligerent 
vessel to be converted into a war-ship within its territorial 
waters constitutes a violation of neutrality, it is likewise the 
belligerent's duty not to commit an act of this kind in neutral 
territorial waters, and that any vessel which has thus been 
converted by disregarding the neutral's neutrality and the duties 
of a belligerent has not regularly acquired the character of 
a war-ship and its status as such must not be recognized." 
(Ill Proceedings, Hague Peace Conferences, Carnegie Endow- 
ment translation, p. 812.) 

The Japanese representative at the Conference say- 
ing that — 

"the question of reconversion is closely related to the question 
of the place where conversion may be effected," 

remarked also that — 

"The only object that the committee has in mind is to diminish, 
so far as possible, the difficulties caused to neutrals by unre- 
stricted conversion and reconversion. In so far as Japan is 
concerned she cannot admit the prohibition of reconversion as 
long as the war lasts and she prefers to decrease the difficulties 
above referred to by restricting the places where conversion or 
reconversion may take place to the restriction of the length of 
time which these vessels must observe before they may be re- 
converted." (Ill Proceedings of the Hague Peace Conferences, 
Carnegie Endowment for International Peace, p. 993.) 

The convention finally agreed upon at The Hague in 
1907 left the difficult question "whether the conversion 



24 VESSELS AND NEUTRAL POBTS 

of a merchant ship into a war-ship may take place upon 
the high seas" unsettled. The question of reconversion 
was also left unsettled. 

Attitude on rccon ri rxion. 1907. — The attitude upon re- 
conversion at the Second Hague Peace Conference may 
also be seen from the discussion in the Fourth Commis- 
sion. Committee of Examination, on August 30, 190T. 

"Wirli regard to the declaration of conversion, the President 
recalls that there is an Austro-Hungarian proposal which does 
not permit reconversion as long as hostilities last. 

"His Excellency Baron Von Macvhio states that he has nothing 
to add to the statement of reasons for this proposal made by 
Mr. Lammasch and that he maintains the proposal. 

"His Excellency Mr. Keiroku Tsudzki asks why reconversion 
is prohibited, inasmuch as it is possible to change ihe class even 
of war-ships during the course of hostilities. 

"His Excellency Mr. Hammarskjold replies that the allowing 
<j successive conversions and reconversions of vessels on the 
liiLih seas would cause the most serious difficulties to the neutrals 
they encountered, and it is for the purpose of avoiding these 
difficulties that the Austro-Hungarian proposal has been pre- 
sented. 

"His Excellency Lord Keay supports the Austro-Hungarian 
proposal for the same reasons as those indicated by his Ex- 
cellency Mr. Hammarskjold. 

"Mr. Fromageot remarks that the condition of permanence 
aims to prevent abuses; neutrals should not be given any 
anxieties on this score. 

"His Excellency Mr. Keiroku Tsudzuki would prefer that the 
limitation of the right to conversion and reconversion should 
apply not to the right itself but to the places where it may be 
exercised. 

"Jonkheer van Karnebeek recalls the amendment proposed by 
Mexico at the seventh meeting of the Commission, laying down 
clearly the rule that the prohibition of reconversion applies only 
to the duration of the war. 

"His Excellency Mr. Keiroku Tsudzuki sees no necessity of 
accepting the Austro-Hungarian proposal as long as the right 
of conversion on the high seas is not recognized. It might be 
accepted only after it has been agreed to admit the principle 
of the right of conversion on the high seas. But even in that 
case he does not see why reconversion in national ports might 
not be permitted. 



ATTITUDE OF INSTITUTE, 1913 25 

"The President thinks that under these circumstances it is 
useless to take a vote." (Ill Proceedings of the Hague Peace 
Conference, Carnegie Endowment for International Peace trans- 
lation, p. 999.) 

British proposal, 1907. — At the Second Hague Peace 
Conference, 1907, Great Britain defined the term "war- 
ship" as follows: 

"There are two classes of war-ships : 
"A. Fighting ships : 
"B. Auxiliary vessels. 

"A. The term 'fighting ship' shall include all vessels flying 
a recognized flag, which are armed at the expense of the State 
for the purpose of attacking the enemy, and the officers and 
crew of which are duly authorized for this purpose by the 
Government to which they belong. It shall not be lawful for a 
vessel to assume this character except before its departure from 
a national port, nor to relinquish it except after its return to a 
national port. 

"B. The term 'auxiliary vessel' shall include all merchant 
ships, whether belligerent or neutral, which are used for the 
transportation of sailors, munitions of war, fuel, provisions, 
water, or any other kind of naval supplies, or which are designed 
for making repairs, or charged with the carrying of dispatches 
or the transmission of information, if the said vessels are obliged 
to carry out the sailing orders given them, either directly or 
indirectly, by a belligerent fleet. The definition shall likewise 
include all vessels used for the transportation of military 
troops." (Ill Proceedings Hague Peace Conferences, p. 1116.) 

The British delegate later withdrew the preamble in 
regard to two classes of warships and explained that it 
was the aim of the British proposal — 

"to assimilate to the military vessels of a naval force, with 
respect to the treatment to which they are exposed, merchant 
ships, whether employed in the service of this fleet for any 
purpose or placed under its orders, or serving to transport 
troops in any way, thus plainly rendering hostile assistance 
to the fleet." (Ibid., p. 853.) 

Institute of International Law, 1913. — Professor 
Fauchille after an exhaustive study presented to the 
Institute of International Law at its Oxford Session in 

81178—36 3 



26 VESSELS AND NEUTRAL PORTS 

1913 a project for a Manual of Naval War embodying 
more than 150 articles. 

Articles 11 and 12 of the project were: 

"Art. 11. Le navire transform^ en navire de guerre consemera 
ce caractere pendant la dure'e des hostilitCs, et it ne powrra 
pendant ce temps etre a nouveau transforme' en navire public ou 
en navire priv4. 

"Abt. 12. Transformation des navires nvilitaires en navires 
publics ou prive's. — Un navire militaire ne peut, tant que durent 
les hostilites, etre transform^ en navire public ou en navire 
privc'r (26 Annuaire de l'lnstitut de Droit International (1913), 
p. 214.) 

These articles were among those receiving extended 
comment which was summarized as follows : 

"Aux termes des articles 11 et 12 du pro jet, tant que durent 
les hostilites, un navire public ou prive" transforme en batiment 
de guerre ne peut reprendre sa premiere qualite pas plus qu'un 
batiment de guerre ne peut etre transforme en navire public 
ou prive. Ces dispositions ont ete textuellement reproduces 
dans le texte de la Commission. Une autre solution etit donn£ 
a un belligerant un moyen trop commode de faire 6chapper ses 
batiments de guerre a la destruction imminente par son adver- 
saire, et de leur procurer en port neutre les provisions et le 
combustible necessaires. 

"Quelques membres de la Commission ont fait remarquer qu'en 
definitive l'article 11 n'etait qu'un cas particulier de l'article 12, 
et qu'il serait des lors preferable de reunir les deux articles en 
un seul, qui, suivant une redaction proposee par M. Dupuis, 
pourrait etre ainsi congu : 'Les navires de guerre ne peuvent, 
pendant la duree des hostilites, etre transformes en navires 
publics ou prives. II n'y a, a cet egard, aucune distinction entre 
les navires de guerre qui avaient cette qualite a l'ouverture des 
hostilites et ceux qui Ton acquise posterieurement'. Mais, apres 
reflexion, on a decide que, pour plus de clarte, on maintiendrait 
dans le projet deux dispositions distinctes. 

"Au sujet de la retransformation, M. Edouard Rolin 
Jaequemyns a pose a la Commission une question. Si un navire 
public ou priv£, transforme en batiment de guerre par un 
belligerant, est pris par son adversaire, ce dernier peut-il le 
retransformer en navire public ou priv6? La retransformation ne 
doit-elle pas etre d^fendue qu'au seul belligerant qui a procede 
a la transformation? Cette distinction ne pouvait etre admise 
par la Commission des lors qu'elle adoptait l'article 12, qui 



ATTITUDE OF INSTITUTE, 1913 27 

stipule d"une maniere generate qu'un batiment de guerre ne 
peut, tant que durent les hostilites, etre transforme en navire 
public ou prive. II y a, d'ailleurs, les nienies raisons de decider 
dans les deux hypotheses, quel que soit l'auteur de la trans- 
formation. La Commission a done tranche la question posee 
par M. Rolin en decidant que ce qui est interdit dans l'article 
11 e'est la retransformation 'par n'importe laquelle des parties 
belligerantes'. M. Kaufmann avait toutefois insiste particuliere- 
ment pour que la retransformation ne fut defendue qu'au bel- 
ligerant qui a fait la transformation ; d'apres lui, le batiment de 
guerre d'un belligerant qui est pris par l'ennemi cesse, par le 
fait meme de la prise, d'etre un batiment de guerre; et il doit 
pouvoir dependre du capteur de faire du navire l'emploi qu'il 
jugera convenable. 

"Mais qu'arrivera-t-il si un batiment de guerre a ete, con- 
trairement & la loi, transforme en navire public ou en navire 
prive? II semble que la transformation, etant illegale, devrait 
etre reputee non avenue et qu'ainsi le navire continuera d'etre 
un batiment de guerre. Cela est-il toutefois possible? Comment 
concevoir qu'un navire puisse avoir la qualite de b&timent de 
guerre s'il ne remplit aucune des conditions caracteristiques du 
vaisseau de guerre? L'admettre & user, dans ces conditions, 
des pouvoirs des navires militaires, ne serait-ce pas enlever route 
sanction a l'acte illegal et, en definitive, autoriser la participa- 
tion aux hostilites d'autres navires que ceux qui sont vraiment 
des batiments de guerre? M. Kaufmann a propose de declarer 
qu'un tel navire perdrait les droits des batiment de guerre mais 
en conserverait les charges. M. Strisower a estime qu'au point 
de vue pratique la proposition de M. Kaufmann entrait dans 
des questions qu'il appartenait au juge de resoudre. La diffi- 
culty paraissant insoluble, la Commission a, en fin de compte, 
decide de la reserver." (Ibid, p. 215.) 

As a result of the discussions the ideas of articles 
11 and 12 were embodied in article 10 of what came to 
be known as the Oxford Manual of Naval War, 1913, 
and this article 10 was translated as : 

"Article 10. Conversion of tcar-ships into public or private 
vessels. — A war-ship may not, while hostilities last, be converted 
into a public or private vessel." (Resolutions of the Institute 
of International Law, Carnegie Endowment for International 
Peace translation, p. 176.) 

Precautions against conversion. — The Secretary of 
Commerce of the United States in 1914 took measures 



28 VESSELS AND NEUTRAL PORTS 

to prevent conversion of merchant vessels into vessels 
of war in American ports. These precautions were in 
excess of those usually taken. As reported to the Sec- 
retary of State, August 6, 1914, the collector of Cus- 
toms at New York was instructed by telegram as 
follows : 

"Have representative of each foreign vessel in your port 
certify to this Department whether she is a merchant vessel 
intended solely for the carriage of passengers and freight, 
excluding munitions of war, or whether slip is a part of the 
armed force of her nation. This information is for purpose of 
maintaining the neutrality of the United States under recent 
proclamation President. Clearance will he refused in absence 
of this certificate. 

"Wire Department before issuing clearance pai>ers to foreign 
vessels unless you are satisfied after careful inspection that 
ship has not made any preparations while in port tending in 
any way to her conversion into a vessel of war. Taking on 
abnormal amount of coal, except in case of colliers, would 
indicate such conversion. Unpacking of guns already on board 
would be conclusive. Painting of vessel a war color would 
indicate conversion. It must l>e clear that she is not to be 
used for transportation recruits or reserves for a foreign army 
or navy. This does not prevent transportation of passengers in 
usual sense, as where there are women and children and men 
of different nationalities even though among them there were 
a few reserves without your knowledge. If her passengers 
are nearly all men and practically all of same nationality, 
clearance cannot be granted. It must be unquestionable that 
she has no arms or munitions of war aboard."' (1914, U. S. 
Foreign Relations, Supplement, p. 595.) 

In the instructions of August 10, 1914, signed by the 
Secretary of the Treasu^ and by the Secretary of 
Commerce, it was stated, 

"5. When a vessel of a belligerent power, which has arrived 
as a merchant vessel, alters, or attempts to alter, her status as 
y. merchant vessel or there is reason to believe she intends to 
alter such status, so as to become an auxiliary cruiser or an 
armed vessel in any degree, you will immediately notify the 
department by wire, giving all particulars. Any of the following 
acts will constitute such a change of status: (a) The placing in 
i,osition or otherwise changing the location of guns which were 



ATTITUDE OF INSTITUTE, 1913 29 

or board the vessel at the time of her arrival; (b) so changing 
the appearance, color, rig, or equipment of a vessel as to render 
her suitable for some purpose of war; (c) the taking on board 
of guns, arms, or ammunition under circumstances which in 
any way indicate the outfitting of the vessel for any purpose of 
war, or in aid of a military expedition." (Ibid, p. 597.) 

The Prim Eitel Fi*iedrich. — A memorandum of March 
13, 1915, when Mr. Lansing was counselor of the De- 
partment of State, outlines the attitude of the Depart- 
ment upon conversion and use of the flag. 

"In a conversation this morning with the German Ambassador, 
relative to the sinking of the William P. Frye by the Prim 
Eitel Fricdricli, and the presence of the latter vessel at Newport 
News, I said to him that I thought this Government had shown 
the German Government very considerable consideration in re- 
gard to the vessel at Newport News. He asked me in what 
way it had been shown, to which I replied 'in not seizing the 
vessel and arresting the captain for piracy.' He said he did 
not understand what I meant. I said to him that we had no 
proof that the Prima Eitel Fricdricli was a German cruiser ; 
that she, so far as the evidence disclosed, was a merchantman ; 
that we had not been notified of her conversion into a cruiser 
and that she did not appear in the list of war vessels of Ger- 
many. The Ambassador said that she was in command of offi- 
cers of the German Navy, to which I replied that so were other 
merchant vessels of German nationality, and that that was no 
evidence of her public character. He then said that she was 
flying the naval flag of Germany. I answered him that I did 
rot think the flag she was flying was any indication of her 
character; that he might recall the fact that the cruiser Emdcn 
entered a port in the Malay Peninsula with a Japanese naval flag 
flying, but that that fact did not make the Emden a Japanese 
war vessel. He asked me what I thought should be done and I 
said that I thought this Government should be immediately noti- 
fied of the conversion of the Prinz Eitel Friedrich into a cruiser 
and that she had entered our port as a public ship of Germany 
and that he further should state whether it was the intention 
to make repairs, not to make repairs, or to intern ; that in 
case we were not advised that the vessel intended to make 
repairs there was no other recourse but to order her to leave 
port within twenty-four hours. The Ambassador said he would 
give the matter his immediate attention.'' (1915 U. S. Foreign 
Relations, Supplement, p. 824.) 



30 VESSELS AND NEUTRAL PORTS 

The German Ambassador asked that the Priixz Eitel 
Friedrich be allowed to remain in Newport News longer 
than 24 hours for necessary repairs, and stated 
that she was formerly a steamer of the North German 
Lloyd and had been commissioned as an auxiliary cruiser 
at Tsingtao according to the seventh convention of The 
Hague, 1907. Fourteen working days were allowed for 
putting the vessel in seaworthy condition. In explain- 
ing the nature of the repairs in a memorandum to the 
British Ambassador, a State Department memorandum 
of March 30, 1915, said, 

"As to the point made by the British Embassy that the clean- 
ing and painting of the bottom of the Prinz Eitel Friedrich and 
tJie making of engine-room repairs will materially increase her 
fighting efficiency, it is only necessary to state that this conclu- 
sion may be drawn from any work in the nature of repairs 
which may be done upon a cruiser while in port, such as repairs 
to her steam pipes or to any part of the ship whatever. It is 
presumed the ship would not have come into port except to re- 
ceive repairs or to obtain supplies, and therefore it is not to 
be supposed that she would leave the port in the same condi- 
tion as tint in which she arrived, that is, without having her 
fighting efficiency increased beyond what it was when she 
entered. 

"The Government has had in mind the principle laid down 
by Mr. Clay, Secretary of State, in the case of the privateer 
Junoal which put in at Baltimore for repairs after an action 
at sea with a Brazilian cruiser. Mr. Clay stated : 

" 'Whilst you will not fail to allow her the usual hospitality, 
and to procure the necessary refreshments, the President directs 
that you will be careful in preventing any augmentation of her 
force and her making any repairs not warranted by law. With 
respect to the latter article, the reparation of damages which 
she may have experienced from the sea is allowable, but the 
reparation of those which may have been inflicted in the action 
is inadmissable.' 

"In the opinion of the Government, a foul bottom is clearly 
a damage which the Prinz Eitel Friedrich 'experienced from the 
sea."' (Ibid, p. 830.) 

The Prinz Eitel Friedrich was subsequently interned 
in the United States. 



RECONVERSION OF INTERNED VESSELS 31 

Reconversion of interned vessels of war. — In 1915 
question was raised in regard to the repairs and changes 
which the German authorities desired to have made in 
the converted vessels Kronprinz W Whelm, and Prim 
Eitel Friedrich then interned at Norfolk, Virginia. In 
the communication, it was stated, 

"Internment conditions should not stand in the way of start- 
ing the work, since Article 24 of the second [thirteenth?] 
Hague convention only makes it the duty of a neutral power 
to take such measures as it considers necessary to render the 
interned ship incapable of taking the sea during the war. The 
ship can thus be prevented from putting to sea by removing 
such parts as are important to her propulsion, screws, cylinder 
heads, and so forth, and, if, in addition, the neutral state places 
the ship's officers and men under sufficient restraint to prevent 
them from again joining their home-fighting forces, it dis- 
charges all its neutral obligations. 

"Internal improvements do not impair the ship's internment 
and, in the present case, it is all the more so as the proposed 
work will divest the steamers of the characteristics of a war- 
ship. 

"The repairs do not constitute any warlike operation but a 
purely business proposition, the sole object of which is to save 
expenses later." (1915 U. S. Foreign Relations, Supplement, 
p. 839.) 

In the reply of the Secretary of State to the German 
Ambassador it was said, 

Washington, December 22, 1915. 

"Excellency: I have the honor to acknowledge the the re- 
ceipt, in due course, of your note of November 11, 1915, rela- 
tive to the applications made by the commanders of the in- 
terned German vessels Kronprinz Wilhelm and Prinz Mitel 
Friedrich for permission for those ships to be put in full repair, 
and, in the case of the Kronprinz Wilhelm, for permission to 
begin the restoration of passenger accommodations. 

"In reply I have the honor to say that, after full recon- 
sideration of the question of the repairs proposed to be made 
on these two vessels, I regret to inform you that this Govern- 
ment can not consent to the extensive repairs desired to be 
made so long as they involve the reconversion of the vessels 
into merchant ships and the consequent loss of their naval 
■character. The position of this Government is briefly that 



32 VESSELS AND NEUTRAL PORTS 

internment applies to vessels stamped with a naval character, 
and some question may arise as to the exercise of the right of 
interning the vessels in question and their officers and crews, 
if they were allowed to assume a merchant character." (Ibid, 
p. 843.) 

British instructions, 1915. — Certain instructions were 
issued for the conduct of armed merchantmen on Oc- 
tober 20, 1915, but were not made public till March 3, 
1916. Among these was the following: 

"(4) The status of a British armed merchant vessel can not 
he changed upon the high seas." (1017 Naval War College, 
International Law Documents, p. 154.) 

Chilean note, 191'). — In a note to the diplomatic agents 
accredited to Chile, the position of that Government 
was made known upon the subject of reconversion of 
auxiliary vessels. In this note it was intimated that 
the principles enunciated would be "in conformity with 
the general convenience of the American Continent/' 

"Ministry of Foreign Relations. 

Santiago, March 15, 191",. 
"To the Minister: 

"This ministry has examined with a particular interest the 
question which has heen submitted to it by the British Govern- 
ment in a note of February 4 last, relating to the possibility, 
for English merchant vessels which have served up till the 
present as auxiliary vessels of the British fleet, to resume their 
status of merchant vessels and to he treated in this capacity 
in the Chilean jurisdictional waters. 

"The Second International Conference of Peace assembled at 
The Hague in 1907 authorized in convention vii the transforma- 
tion of merchant vessels into vessels of war, determining at 
the same time measures intended to prevent abuses especially 
in reference to the reestahlishment of the privateer, abolished 
by the Declaration of Paris of 1856. 

"But neither the said conference nor the London Naval Con- 
ference of 1909 have regulated all the matters relative to mari- 
time war and notably that of the reconversion to merchant 
vessels of vessels which, having formerly had this character, 
have subsequently been converted into vessels of war or auxil- 
iaries to the armed fleet. 



CONVERSION OF AUXILIARY SHIPS 33 

"Conformably to the general principles of international law 
the governments of neutral countries can regulate cases not 
provided for conventionally and apply in their jurisdictional 
waters the regulations which they adopt. The preamble of 
convention xiii of The Hague formally recognizes this right. 

"The Government of Chile desires to settle the question sug- 
gested by the note above indicated according to the attitude of 
.strict neutrality adopted by it since the beginning of the war 
and also in conformity with the general convenience of the 
American Continent, since the great European conflict has 
demonstrated in an evident manner that international rules 
.should in the future take into consideration the particular con- 
ditions of this hemisphere. 

"Inspired by this idea, the Chilean Government sees no in- 
convenience in admitting into the ports and jurisdictional waters 
of Chile and in treating in all respects as merchant vessels, 
vessels which have been auxiliaries of the fleet of one of the 
belligerent States, when the said vessels fulfill the following- 
conditions : 

"1. That the auxiliary vessel has not violated Chilean neu- 
trality ; 

"2. That the reconversion took place in the ports or juris- 
dictional waters of the country to which the vessel belongs or in 
the ports of its allies ; 

"3. That this was effective; that is to say, that the vessel 
neither in its crew nor in its equipment gives evidence that it can 
be of service to the armed fleet of its country in the capacity of 
an auxiliary, as it was formerly; 

"4. That the Government of the country to which the vessel 
belongs communicates to all interested nations, and in par- 
ticular to neutrals, the names of auxiliary vessels which have 
lost this status to resume that of merchant vessels; and 

"5. That the same Government give its word that the said 
vessels are not in the future intended for the service of the 
armed fleet in the capacity of auxiliaries. 

Alejandro Lira." 

(1916 Naval War College, International Law Topics, p. 28.) 

Conversion of auxiliary ships. — It is evident that the 
conversion of auxiliary ships into merchant vessels was 
contemplated in 1928 in spite of the opposition which 
had been displayed in earlier years. Article 13 of the 
Habana Convention on Maritime Neutrality, to which 



34 VESSELS AXD NEUTRAL PORTS 

the United States is a party, under the general section 
on Duties and Rights of Belligerents is as follows : 

"Article 13. Auxiliary ships of belligerents, converted anew 
into merchantmen, shall be admitted as such in neutral ports 
subject to the following conditions : 

"1. That the transformed vessel has not violated the neutrality 
of the country where it arrives; 

"2. That the transformation has been made in the ports or 
jurisdictional waters of the country to which the vessel belongs, 
or in the ports of its allies; 

"3. That the transformation be genuine, namely, that the ves- 
sel show neither in its crew nor in its equipment that it can 
serve the armed fleet of its country as an auxiliary, as it did 
before ; 

"4. That the government of the country to which the ship 
belongs communicate to the states the names of auxiliary craft 
which have lost such character in order to recover that of 
merchantmen ; and 

"5. That the same government obligate itself that said ships 
shall not again be used as auxiliaries to the war fleet." (Report 
of the American Delegates, Sixth International Conference of 
American States, Habana, 1928, p. 220; post p. 41.) 

While there might be question as to the propriety 
of placing this article under the section on duties and 
rights of belligerents, by its provisions the article seems 
to place upon the neutrals certain duties in regard to the 
admission of converted auxiliary ships. 

(a) (3) The "Xebe" and state B.—The 1928 Habana. 
Convention on Maritime Neutrality, article 13, made 
provision for admission to neutral ports of auxiliary 
ships of belligerents which had been converted anew 
into merchantmen. The implication was that such 
ships by conversion reverted to a former merchant 
status. The events of the World War had brought to 
the attention of some of the South American states the 
treatment of such vessels in South American ports. 

There had been, particularly since the Second Hague 
Conference, 1907, much discussion of the rights of con- 
version of merchant vessels into vessels of war and their 
reconversion. The opinion of states seemed to be gen- 



UNNEUTRAL SERVICE 35 

erally unfavorable to admitting such a right though no 
conclusion was reached in 1907. 

The 1928 Habana convention article could not be 
stated to be a principle of international law binding 
states not parties to the convention, but merely a con- 
ventional agreement among parties to the convention. 

Unneutral service and neutrals. — Unneutral service 
to one belligerent by a neutral vessel makes that vessel 
liable to treatment by the other belligerent as an enemy 
vessel. The neutral state whose flag the vessel flies 
assumes no responsibility for its conduct. It would be 
very difficult or impossible for a neutral state to super- 
vise the conduct of all vessels sailing under its flag. 
The neutral state does, however, usually notify its 
nationals that it will not protect them in acts which 
are contrary to neutrality. 

The carriage of contraband is at the risk of the 
carrier, the disregard of blockade regulations is at the 
risk of the vessel, and engaging in unneutral service 
makes the party concerned liable to penalty if taken 
by the belligerent. The neutral state would be involved 
only when it permits in its jurisdiction acts which 
might be construed as use of its territory as a base. 

Vessels liable to attack. — Not all enemy vessels are 
liable to attack though the right to approach and visit 
in time of war is generally admitted except for neutral 
public vessels, and some enemy vessels may be attacked 
at sight. 

Professor Hyde, in referring to public vessels, says : 

"The absence of armament on a public vessel (not exempt 
from capture) has not been deemed to offer a sufficient reason 
why an enemy force should not attack it at sight. The exer- 
cise of this right does not appear to be limited to circumstances 
when attack or destruction is the only means of preventing 
escape. The unarmed public ship seems to be regarded as with- 
out the right to demand opportunity to surrender prior to attack 
oven under circumstances when neither resistance nor flight 
would otherwise be attempted. Thus the existing practice ex- 
cuses if not encourages reckless disregard of human life; for 



36 VESSELS AND NEUTRAL PORTS 

the burden is on the ship to make special efforts to surrender 
before it is attacked." 

•'Even if it be admitted that the character of a public ship is 
always sucb as to justify the employment by the enemy of what- 
ever force is necessary in order to reduce it to control, it does 
liOt follow that the use of force unnecessary to accomplish that 
end is always likewise justified. It is believed, therefore, that 
the attack upon such a vessel at sight should be confined to 
rases where the immediate use of force appears to be the only 
means of preventing the escape of the ship, or of interference 
with the attempt to effect its capture by another vessel of the 
same belligerent or by some other external force exerted in 
its behalf. The reasonableness of demanding restraint on the 
part of the enemy must be apparent in the case where the un- 
armed public vessel is, when encountered, known to be employed 
on a service unrelated to the prosecution of the war." (2 Hyde, 
International Law, p. 464.) 

Attitude of Ecuador, 191 Jf. — By a decree of Novem- 
ber 28, 1914, Ecuador took action beyond that taken in 
its proclamation of neutrality of August 17, 1914, in 
which it had decreed strict observance of neutrality in 
accord with the Hague Convention of 1907 on the rights 
and duties of neutrals and in accord with the principles 
of international law. 

The decree stated that : 

"To the rules of the Convention of The Hague, to which the 
Government of Ecuador has resolved to conform, are added 
the following: 

"1st. No merchant ship, no matter what be its nationality nor 
whether it belongs to a belligerent country or not, shall be 
allowed to leave an Ecuadorian port unless the authorities of 
the port have previously obtained from the consul of the na- 
tionality to which the ship belongs, a written certificate indicat- 
ing the next port at which the ship will stop, as also its final 
destination, and stating that the ship's voyage is for commercial 
purposes only ; 

"2d. Whenever a case should arise in which a merchant ship 
had left or intended to leave an Ecuadorian port, and should 
have been an unusual time on its voyage to the port of its desti- 
nation or should have taken an unusual route, or were not to 
have taken the direction stated by the consul ; or, finally, should 
it, before reaching port, have changed its cargo, such a ship 



ATTITUDE OF NEUTRAL STATES 37 

shall be regarded as suspicious and on its next arrival at an 
Ecuadorian port may be detained by the Ecuadorian naval 
authorities and is liable to be considered as part of the belliger- 
ent forces of the Nation to which it belongs and to be treated 
as such." (1916 Naval War College, International Law Topics, 
p. 57.) 

Nicaraguan attitude, 19 H. — In a circular issued by 
Nicaragua, December 5, 1914, provision was made for 
internment of merchant vessels regardless of nationality 
if their conduct had been such as to involve suspicion. 
This circular contained the following statement : 

"Fourth, mercantile vessels of any nationality that arrive at 
Nicaraguan ports under suspicious circumstances, such as having 
made false statements regarding their destination when sailing 
from a port of the Republic on a former occasion ; being known, 
by official notice, to have supplied fuel or provisions to war 
vessels of belligerents ; having employed an excessive length of 
time in their voyage; being painted with colors peculiar to war 
vessels or with similarly distinctive signs, shall be interned in 
their respective ports, the respective authorities of which shall 
immediately inform the Office of Foreign Affairs of the necessary 
ulterior measures." (1916 Naval War College, International 
Law Topics, p. 65.) 

Action of Argentine, 1914-15. — In General Orders of 
December 26, 1914, the Government of Argentine 
decreed, 

"Art. 3. When it is proven that a merchantman has trans- 
ferred, by its own act, to war vessels the fuel which it has 
aboard, either as cargo or for its own necessary consumption, it 
shall be considered as an auxiliary to the war fleet, and the 
maritime authorities shall refuse * * * being governed by 
considerations of the case * * * to provide coal for the other 
boats in the same company." (1917 Naval War College, Inter- 
national Law Documents, p. 30.) 

By a decree of January 22, 1915, internment was de- 
creed for a vessel of belligerent nationality which had 
accompanied the German fleet, 

"From conclusions based upon the adjoined documents signed 
by the captain of the German steamer Seydlitz upon putting in 
at the port of San Antonio Oeste, and by the captain of the 



X 



38 VESSELS AND NEUTRAL PORTS 

English bark Drummuir upon his disembarkation at the harbor 
of this city that the first-named steamer made part of the 
German South Atlantic and Pacific division from the 3d to the 
8th of September last, to which it was ordered to go by the chief 
of that naval force, having on board the crew of the bark sunk 
by the cruiser Leipzig, for which circumstance it should be 
considered as an auxiliary boat of the German division, and for 
this reason unable to remain in an Argentine port more than 
twenty-four hours without infringing the neutrality laws. 
"The President of the Argentine Nation decrees that: 

"Article 1. The minister of the navy shall take action to have 
the German steamer Seydlitz, which has taken refuge in the port 
of San Antonio Oeste since the 18th of last December, convoyed 
by an Argentine vessel to Puerto Militar, where it shall be in- 
terned until the end of the present war." (Ibid, p. 31.) 

The Argentine Government also interned other vessels 
engaged in auxiliary service of the belligerents. 

Supplying vessels of war at sea. — In March 1915 by a 
joint resolution, Congress aimed to restrict the furnish- 
ing of supplies from American ports to belligerent ves- 
sels of war at sea. The resolution was stated as follows : 

"Resolved by the Senate and House of Representatives of the 
United States of America in Congress assembled, That, from and 
after the passage of this resolution, and during the existence of 
a war to which the United States is not a party, and in order to 
prevent the neutrality of the United States from being violated 
by the use of its territory, its ports, or its territorial waters as 
the base of operations for the armed forces of a belligerent, con- 
trary to the obligations imposed by the law of nations, the 
treaties to which the United States is a party, or contrary to 
the statutes of the United States, the President be, and he is 
hereby, authorized and empowered to direct the collectors of 
customs under the jurisdiction of the United States to withhold 
clearance from any vessel, American or foreign, which he has 
reasonable cause to believe to be about to carry fuel, arms, am- 
munition, men, or supplies to any warship, or tender, or supply 
ship of a belligerent nation, in violation of the obligations of 
the United States as a neutral nation. 

"In case any such vessel shall depart or attempt to depart 
from the jurisdiction of the United States without clearance 
for any of the purposes above set forth, the owner or master 
or person or persons having charge or command of such vessel 



CASE OF THE "FARN" 39 

shall severally be liable to a fine of not less than $2,000 nor 
more than $10,000, or to imprisonment not to exceed two years, 
or both, and, in addition, such vessel shall be forfeited to the 
United States. 

"That the President of the United States be, and he is hereby, 
authorized and empowered to employ such part of the land or 
naval forces of the United States as shall be necessary to 
carry out the purposes of this resolution. 

"That the provisions of this resolution shall be deemed to 
extend to all land and water, continental or insular, within the 
jurisdiction of the United States. 

"Approved, March 4, 1915." (1915 U. S. Foreign Relations, 
Supplement, p. 851; 38 U. S. Stat, p. 1226.) 

The "Fam," 1915. — The Fam, a British steamer, left 
Cardiff about September 5, 1914, with a provision u in 
her charter to deliver coal to warships if they so de- 
sired." The Fam was captured and a German prize 
crew was put on board. The Fam, or KD-3 as she 
seems to have been called, w r as for about 3 months used 
by the German captors when she put in to San Juan, 
Porto Rico, for provisions and water. The United 
States Government decided to treat the Fam as an 
auxiliary in service of the German fleet. 

As the Fam had not been condemned by a prize court, 
the British Ambassador maintained that the Fam 
should be treated as a prize which should be released 
under article 21 of Hague Convention XIII of 1907. 
The reply of the Secretary of State was that, as a result 
of investigation, it had been determined to order the 
vessel to leave port within 24 hours, and "upon failure 
to leave, that the vessel, together with the prize officers 
and crew, be interned, the British officers and crew and 
the Chinese seamen being released." 

"Later, in reply to a further communication of the 
British Ambassador, the Department of State said : 

"Your excellency states that it would be necessary before 
the vessel could be treated as a German fleet auxiliary that 
she should have been condemned by a competent prize court. 
With this conclusion the Government of the United States is 
under the necessity of disagreeing. In the opinion of this 



40 VESSELS AND NEUTRAL PORTS 

Government an enemy vessel which has been captured by a 
belligerent cruiser becomes as between the two governments thci 
property of the captor without the intervention of a prize court. 
If no prize court is available this Government does not under- 
stand that it is the duty of the captor to release his prize, or 
to refuse to impress her into its service. On the contrary, the 
captor would be remiss in his duty to his Government and to the 
efficiency of its belligerent operations if he released an enemy 
vessel because he could not take her in for adjudication. 

"As to Article 21 of Hague Convention No. XIII of 1907 cited 
by your excellency as prescribing the treatment to be accorded 
to the Farn, it is only necessary to state that as it appears that 
His Majesty's Government has not ratified this convention it 
should not be regarded as of binding effect between Great 
Britain and the United States. 

"In this relation I venture to call to your attention that the 
British Consul at San Juan protested on January 12 against the 
elearnnce of the Farn, and that your excellency in your note 
of January 13 requested that she be detained in the interest 
of neutrality. It was not until January 17 that your excellency 
informed the Department that His Majesty's Government pre- 
sumed that the United States would act under Article 21 of 
Hague Convention No. XIII of 1907 in regard to the release of 
the vessel. Sufficient time had thus elapsed to allow for com- 
munication with British warships and their appearance off the 
port of San Juan. The result of releasing a German prize 
loaded with coal at this juncture needs no comment. 

"In the circumstances the Government of the United States 
is under the necessity of adhering to its decision to intern 
until the end of the war the steamship Farn as a fleet auxiliary." 
(1915 U. S. Foreign Relations, Supplement, p. 823.) 

Habana Convention on Maritime Neutrality. 1928. — 
The Habana Convention on Maritime Neutrality of 
February 20. 19*28, was ratified by the United States 
and proclaimed in 1932 (Treaty Series 845). This 
convention had been considered at the Sixth Interna- 
tional Conference of American States. As the report of 
the delegates of the United States of America states : 

"The result was a modified draft, in large measure that of 
the thirteenth convention of the Second Hague Peace Confer- 
ence of 1907, with sundry modifications and additions in order 
to take note of the measures which neutrals had taken to pre- 



HABANA CONVENTION, 19 2 8 41 

serve their rights during the World War. As finally drafted 
and originally adopted, the project presupposed a war, in which 
the American Republics would be neutral. For this reason it 
was indispensable that the practice of nations should be strictly 
observed, as it would be undesirable on the part of the American 
states to attempt to change the general rights of all neutrals 
by a special .tgreement of their own. There is, however, an 
American Republic without access to the sea. The Bolivian 
delegation proposed a modification of the general rule in case 
of war between American Republics, to the effect that the proj- 
ect should contain a clause, by virtue whereof neutral states 
should be obliged to permit the transportation of materials of 
war through their territories to an American state thus shut 
off from the sea. provided the neutral states should not consider 
that their vital interests w T ere affected. The delegation of the 
United States conceived this to be a just provision under the 
circumstances, and voted for it. It was adopted as the second 
paragraph of Article 22, with a reservation on the part of Chile. 
"The Argentine delegation proposed in committee amendments 
which it had suggested in the subcommittee. One of these, to 
the effect that armed merchantmen should be assimilated to 
auxiliary vessels in the service of belligerents, was carried and 
forms the last sentence of Article 12 of the convention. To this, 
the United States interposed a reservation, as did likewise Cuba 
and Uruguay. The convention was adopted in the plenary 
session of February 18, Chile and the United States expressly 
maintaining at the time of signing, their respective reserva- 
tions." (Report of the Delegates of the United States of 
America to the Sixth International Conference of American 
States (1928), p. 18.) 

(b) The "Dobo" and commerce of state Y. — Article 
22 of the 1928 Habana Convention on Maritime Neu- 
trality makes provision in regard to commerce between 
neutral and belligerents. This article also makes special 
provision for certain American states in regard to 
transit of goods. 

In general neutral states are not under obligation to 
prevent shipments of cargo from their ports though 
the destination and character of the cargo may be de- 
termining factors in the treatment of the shipments by 
the belligerents. Habitual use of a neutral port as a 
source of supply for belligerent vessels of war may give 

81178—36 4 



42 VESSELS AND NEUTRAL PORTS 

rise to questions in regard to the use of neutral territory 
as a base but the shipment of cargo from a belligerent 
port to a neutral port would not involve such questions. 
A neutral vessel which delivers supplies to a belliger- 
ent vessel of war may be considered by the opposing 
belligerent to have engaged in unneutral service but the 
risk rests upon the neutral vessel. Such a vessel would 
not be regarded as an auxiliary of the navy of the 
belligerent which would imply conversion, a recognized 
procedure in international law. Unneutral service by a 
neutral vessel does not put neutral states under obliga- 
tions, but gives the belligerent rights of capture. 

Asylum in neutral ports. — The question of asylum has 
long been a subject of discussion. The Institut de Droit 
International almost from its founding in 1873 gave 
attention to matters relating to capture, prize, and treat- 
ment of belligerent vessels by neutrals. Among the reso- 
lutions adopted in 1898 after discussion was the fol- 
lowing on the Regulations Concerning the Legal Status 
of Ships and their Crews in Foreign Ports : 

"Article 24. Granting of asylum to belligerents in neutral 
ports, although depending upon the pleasure of the sovereign 
State and not required of it, shall be presumed, unless previous 
notification to the contrary has been given. 

"With regard to war-ships, however, it shall be limited to 
cases of real distress, in consequence of : 1. defeat, sickness, or 
insufficient crew ; 2. perils of the sea ; 3. lack of the means of 
subsistence or locomotion (water, coal, provisions) ; 4. need of 
repairs. 

"A belligerent ship taking refuge in a neutral port from pursuit 
by the enemy, or after having been defeated by him, or because 
it has not a sufficient crew to remain at sea, shall remain therein 
until the end of the war. The same rule shall apply if it is 
carrying sick or wounded, and after having landed them, is in 
condition to go into action. The sick and wounded, though 
received and cared for, shall, after they have recovered, be also 
interned, unless considered unfit for military service. 

"Refuge from the perils of the sea shall be granted to war- 
ships of belligerents only so long as the danger lasts. No 
greater quantity of water, coal, food or other analogous sup- 



ASYLUM IN NEUTRAL PORTS 43 

plies shall be furnished them than is necessary to enable them 
to reach their nearest national port. Repairs shall not be allowed 
except so far as necessary to enable them to put to sea. Imme- 
diately thereafter the ship shall leave the port and neutral 
waters." (Resolutions of the Institute of International Law, 
Carnegie Endowment for International Peace translation, p. 154.) 

In the discussion of this article M. Kleen, one of the 
reporters upon the subject, referred to the third para- 
graph, 

"Quant a Tasile a accorder aux navires en fuite, la solution 
du probleme devient plus difficile encore que lorsqu'il s'agit de 
cas de detresse par suite d'evenements naturels. A defaut 
d'occasions, on ne possede pas, a ma connaissance, un seul exem- 
ple de leur internement dans le port oil ils se sont refugies 
devant l'ennemi, a l'instar de ce qui se passe sur terre. Mais 
il est clair que si, dans les conditions actuelles, les neutres per- 
mettaient aux batiments combattants de se refugier chez eux 
devant une poursuite on apres une defaite, pour en ressortir 
apres dans des conditions plus favorables, l'autre belligerant 
addresserait des reclamations tres vives au souverain du port 
devenu ainsi un point d'appui pour lui arracher les fruits de 
sa superiorite. Dans la doctrine, on s'est peu occupe de la 
question ; toutefois, ceux qui Font resolue dans le meme sens 
que l'article ci-dessus, sont assez nombreux et considerables pour 
faire autorite. 

"La permission pour un navire belligerant de retourner au 
combat apres avoir complete son equipage dans un port neutre 
equivaudrait evidemment a une aide d'enrolement tout marin 
sur un batiment de guerre pouvant participer au combat." (17 
Annuaire de l'lnstitut de Droit International, 1898, p. 68.) 

The question of asylum in neutral ports again received 
the attention of the Institute in 1910 and was discussed 
in this Naval War College in 1911 (1911 Naval War 
College, International Law Situations, pp. 9-36). 

American treaties. — Many American treaties of the 
nineteenth century had been similar to the treaty be- 
tween the United States and Peru of 1887: 

"Article XIII. When through stress of weather, want of water 
or provisions, pursuit of enemies or pirates, the vessels of one 
of the high contracting parties, whether of war, (public or pri- 
vate.) or of trade, or employed in fishing, shall be forced to 



44 VESSELS AND NEUTRAL PORTS 

seek .shelter in the ports, rivers, bays, and dominions of the 
ether, they shall be received and treated with humanity ; suffi- 
cient time shall be allowed for the completion of repairs, and 
while any vessel may be undergoing them, its cargo shall not 
unnecessarily be required to be landed either in whole or in 
part ; all assistance and protection shall be given to enable the 
vessel to procure supplies, and to place them in a condition to 
pursue their voyage without obstacle or hindrance." (25 Stat., 
1444, 1450.) 

The case of the "Pisa." — In a note of the German 
Embassy, March 26, 1915. it was stated that the Pisa 
of the Hamburg- American Line was to apply for clear- 
ance papers from New York to Hamburg and that the 
Pisa would try to communicate with a German cruiser 
in the Atlantic, to which it was maintained no objec- 
tion could be made as no German vessel of war had 
taken supplies in this region within three months. The 
German Embassy referred to the note of the Depart- 
ment of State, December 24, 1914, in which it was 
stated that 

"the essential idea of neutral territory becoming the base for 
naval operations by a belligerent is, in the opinion of this 
Government, repeated departure from such territory of mer- 
chant vessels laden with fuel or other supplies for belligerent 
warships at sea." (1914 U. S. Foreign Relations. Supplement, 
p. 648.) 

Of this the German note of March 2G. 1915, said, 

"As already mentioned, no supplies for the German men-of- 
war involved here left the United States of America within 
the last three months. The words 'for belligerent warships 
at sea' make it clear, that it is immaterial whether the warship 
to be supplied is in port, off a port, or on the high sea. As 
a matter of fact in all three cases the only difference would 
be in the distance covered by the supply-carrying conveyance. 
Therefore no international law or agreement establishes such 
a difference. Nor is there any distinction made between fur- 
nishing supplies for a home journey or any other purpose. In 
fact, according to international law. there seems to be only one 
restriction put to supplying belligerent warships: that one ship 
can not be supplied from the same neutral port more than once 
within three months. 



CASE OF THE "PISA" 45 

"It is obvious that it is for the party making the charge 
that such supplies have been furnished more than once within 
three months, to prove the charge by substantiated evidence. 

"The Embassy must assume that the rules laid down in Mr. 
Bryan's note of December 24, 1914 are still in force. The 
resolution passed by Congress and promulgated on March 4, 
does not seem to alter any existing laws, but appears to em- 
power the Executive to enforce laws already in existence." 
(1915 U. S. Foreign Relations, Supplement, p. S59.) 

In replying to this statement, the Acting Secretary 
of State, on April 10, 1915, said : 

"The memorandum quotes from the Department's note of De- 
cember 24 last to the effect that the essential idea of neutral 
territory becoming the base for naval operations is repeated 
departure from such territory of merchant vessels laden with 
fuel or other supplies for belligerent warships at sea, and the 
memorandum draws the conclusion from Hague Convention No. 
XIII of 1907, that the word 'repeated' means 'more than once in 
three months.' The argument appears to be that, inasmuch as 
no supplies for German men-of-war have left the United States 
within three months, no objection ought to be raised to the 
clearance of the Pisa though it is admitted that she intends to 
transfer her cargo, if possible, to a German cruiser on the high 
seas. 

"It is true that the Department's note of December 24 dis- 
cussed the meaning of 'base of operations,' but it was also 
pointed out that the obvious result of the practice of sending 
supplies to warships at sea, would be that such warships could 
remain on their stations engaged in belligerent operations with- 
out the inconvenience of repairing to port for supplies. Both of 
these assertions must be considered as they present different 
phases of the same question. It is the opinion of this Govern- 
ment that the result of supplying warships in order that they 
may avoid the danger or inconvenience of visiting a neutral port 
would be in contravention of the rules of international law and 
Ihe provisions of Hague Convention No. XIII. Both Articles 19 
and 20 of that convention indicate unquestionably that the coal- 
ing of warships from stores gathered at a neutral port or road- 
stead is to take place in that port or roadstead, and these pro- 
visions are regarded as consonant with the existing rules of in- 
ternational law on the subject. It is obvious that to carry fuel 
and supplies to a warship on its station at sea is not furnishing 
her with fuel within a neutral port. I am, therefore, under the 
necessity of disagreeing with your statement that 'it is imma- 



46 VESSELS AND NEUTRAL PORTS 

terial whether the warship to be supplied is in port, off port, or 
on the high seas.' 

"The reasons for this rule are evident, when its application 
is considered. In the first place, as only sufficient coal and 
supplies may be furnished a warship to enable it to reach 
its nearest home port, neutrals must, in order to determine the 
amount, be specifically advised of the size of the vessel, the 
number of the crew, the amount of fuel and supplies already on 
board, and the place of transshipment. Without knowledge of 
these facts it would be impossible to limit the cargo of a 
vessel so that the warship could not take on board more coal 
or supplies than the rule of international law permits. In 
the second place after the departure of a supply boat from the 
jurisdiction of the United States, this Government would have 
no control over the vessel to prevent delivery to a different 
warship from the one supposed to be entitled to replenishment, 
even though the supplies furnished far exceeded the amount 
permitted by international law. In the third place, as a bellig- 
erent warship may not, in any event, supply itself in the ports 
of a neutral power more than once in three months, a neutral 
government, before allowing coal and supplies to be taken to a 
belligerent warship from its ports, should be satisfied that 
none had been obtained by the same vessel within the proceed- 
ing three months. This information can be had only from the 
warship itself, unless it has during the period entered a neutral 
port, or been in direct communication therewith. In any event 
the amount of the stores to be supplied, and the time when 
they may properly be furnished are questions of fact, and not 
matters of presumption. 

"Furthermore, the allowance of coal and supplies by a neutraL 
to a belligerent warship is based on the presumption that the 
latter intends to return to its home port. There can, however, 
be no such presumption in the present case. In fact the pre- 
sumption is that no German warship would attempt to return 
home when there is a virtual investment of German ports by 
hostile naval forces. On the contrary it may be assumed with 
reasonable certainty that a German warship which remains on 
the high seas, purposes to take supplies in order to continue 
hostile operations against vessels of belligerent nationality and 
to intercept and search neutral vessels. If, therefore, such a 
warship is supplied with an amount of coal and supplies in 
excess of the amount permitted by law, the neutral territory 
from which such stores are derived, would clearly constitute 
a depot for the projection of the naval operations of a bellig- 
erent in contravention of the rules of international law and 



ENTRANCE IN TIME OF PEACE 47 

Article 5 of Hague Convention No. XIII of 1907." (Ibid, p. 
862.) 

Entrance of vessels of war in time of peace. — While 
it was formerly common to permit foreign vessels of war 
to enter ports in time of peace, in recent years restric- 
tions have been placed on such entry. This is partly 
due to the change in the character of vessels of war from 
the comparatively weak sailing vessels to the battleships 
of modern navies. 

Regulations varying in strictness were general even 
before the World War. The customary requirement was 
prior diplomatic notice, sometimes of a specified number 
of days. 

Certain named ports were closed to entrance of vessels 
of war and sometimes to merchant vessels also. 

The restriction as to the number of vessels that might 
enter in time of peace was also common. The time of 
sojourn was usually specified. 

Of course, local port regulations were to be observed 
by visiting vessels of war, and quarantine regulations 
also prevailed even for public vessels. 

To closed ports admission in time of peace may be 
permitted to vessels in distress for ^ny reason. The 
argument is that the rights of humanity take prece- 
dence over regulations dictated by political or strategic 
expediency. In time of war the same liberality of in- 
terpretation does not prevail. 

Norwegian rules, 1912. — The Norwegian rules of De- 
cember 18, 1912, in time of peace proclaimed that, 

"War vessels of belligerent powers are permitted to enter 
ports and roadsteads as well as other territorial waters of the 
kingdom. At the same time admission is subject to the excep- 
tions, restrictions, and conditions which follow: 

"1. (a) It is forbidden belligerent war vessels to enter the 
ports and roadsteads of war, which have been proclaimed as 
such. 

"(b) It is also forbidden such vessels to enter inner terri- 
torial waters whose entrances are closed by submarine mines 
or other means of defense. 



48 VESSELS AND NEUTRAL PORTS 

"(c) The King reserves the right to forbid under the same 
conditions to the two belligerent parties, access to other Nor- 
wegian ports or roadsteads and other denned parts of the 
interior Norwegian waters, when special circumstances demand 
and for safeguarding the sovereign rights of the kingdom and 
tc maintain its neutrality. 

"(d) The King also reserves the right to forbid access to 
ports and roadsteads of the kingdom to belligerent war vessels 
-which have neglected to conform to rules and prescriptions 
promulgated by the competent authorities of the kingdom and 
which have violated its neutrality." (1917 Naval War College, 
International Law Documents, p. 184. ) 

A general regulation applied to all warships of for- 
eign nationality as prescribed in royal ordinances of 
January 20, 1912, August 21, and September 11, 1914. 

"No foreign war vessels except those mentioned in article 4 
can enter the Norwegian war ports or naval stations without 
having obtained the authorization of His Majesty the King 
or of the persons authorized by him to this effect. 

"It is necessary to indicate in advance the types and names 
of war vessels for which the authorization to enter Norwegian 
war ports or naval stations is solicited, as well as the date of 
arrival and duration of sojourn. 

"Without special authorization in extraordinary cases the 
sojourn in a war port or naval station can not exceed eight 
days, and in general no more than three war vessels belonging 
to the same nation will be permitted to sojourn simultaneously 
in the same port." (Ibid, p. 187.) 

The excepted classes mentioned under article 4 were : 

"(a) Every war vessel on which the Chief of State of a for- 
eign nation is traveling and the vessels which convoy it. 

"(b) War vessels which find themselves in immediate danger 
from the sea, which are always permitted to have recourse to 
the ports of the kingdom. 

"(c) War vessels intended for or engaged in the surveillance 
of fisheries or of hydrographic work and other scientific objects." 
(Ibid, p. 188.) 

Similar rules w r ere issued by other Scandinavian 
states. 

Rules in World War. — The rules announced by neu- 
tral states during the World War varied somewhat, 



WORLD WAR RULES 49 

but usually aimed to restrict repairs to a limit which 
would not make the port a base and thus make the 
neutral state liable. 

The Brazilian rules stated on August 4, 1914, 

"Art. 13th. The belligerent warships are allowed to repair 
their damages in the ports and harbors of Brazil only to the 
extent of rendering them seaworthy, without in any wise aug- 
menting their military power. 

"The Brazilian naval authorities will ascertain the nature 
and extent of the proper repairs, which shall be made as 
promptly as possible." (1916 Naval War College, International 
Law Topics, p. 11.) 

The proclamations of other states were to similar 
effect. 

In the discussion of sojourn for repairs at the Second 
Hague Peace Conference, 1907, the Brazilian delega- 
tion presented a lengthy memorandum upon asylum in 
neutral ports in course of which it was said, 

"(7) When a belligerent war-ship takes refuge in a neutral 
port or territorial waters, to escape pursuit by its enemy, if it 
is unable to complete the necessary repairs or to take on suffi- 
cient supplies to enable it to put to sea within the period al- 
lowed it, that is to say twenty-four hours, it is preferable, as a 
guaranty, for the neutral State to intern it until the end of 
the war. 

"That is the surest way of conforming to the true spirit of 
neutrality. This would not be too rigorous a proceeding, for the 
necessity of closing the ports to these vessels would thus be 
avoided, which closing might entail heavy damages, and inore- 
o\er the complications which the difficulty of this delicate ques- 
tion might lead to would be avoided. 

"We can here proceed in the same manner only in the case 
of vessels in distress as the result of damage caused by the 
erudition of the sea. 

"In this last case the solution accepted by all is to allow the 
vessel admitted under these conditions to depart freely ; but if 
this is done and if in a particular case the vessel is given refuge, 
this would be a first infringement of the principle of the in- 
violability of neutral ports and waters, which infringement 
would naturally be regarded as complete, if the belligerent vessel 
is not subsequently required to depart upon the expiration of 



50 VESSELS AND XEX'TRAL PORTS 

the customary period of twenty-four hours in these ports or 
waters. 

"Humanitarian considerations should undoubtedly decide neu- 
trals to receive a pursued belligerent vessel, this aid being indis- 
pensable to enable it to escape a danger which might seriously 
jeopardize the situation of those on board or expose the vessel 
to certain loss unless it takes refuge in the first port it comes to. 

"But when this duty is once performed and the established 
rules covering the matter have been set aside to give way only 
to Christian sentiments, which demand not only that the vessel 
be admitted, but even that the neutral go to its aid to save it 
maintenance of his neutrality by the neutral requires that these 
vessels be held in the neutral's ports and waters and disarmed 
there, and that they shall not take any further part in hos- 
tilities for the duration of the war." (Ill Proceedings Hague 
Peace Conferences. Carnegie Endowment translation, p. 586.) 

At the Second Hague Peace Conference frequent 
mention had been made of the rules of the Treaty of 
Washington of 1871 under which the Alabama award 
had been made. The British proposal on the subject of 
asylum from enemy pursuit had been as follows : 

"Abttcxe 15. When a war vessel of a belligerent takes refuge 
in neutral waters in order to escape pursuit by the enemy it 
is incumbent upon the Government of the neutral State to in- 
tern it until the end of the war." (Ibid, p. 699.) 

Article 17 of the Hague Convention XIII which was 
adopted by the conference in 1907 provides: 

"In neutral ports and roadsteads belligerent war-ships may 
only carry out such repairs as are absolutely necessary to render 
them seaworthy, and may not add in any manner whatsoever to 
their fighting force. The local authorities of the neutral Power 
shall decide what repairs are necessary, and these must be 
carried out with the least possible delay." 

This rule has been generally reaffirmed. 

Netherlands declaration. 191Jf. — While opposition was 
voiced against the Netherlands declaration of August 
5, 1914. the Netherlands Government continued to en- 
force its provisions in order to ensure its neutrality. 
Articles 4 and 5 of this declaration provide the general 
rule and the exception. 



NETHERLANDS DECLARATION, 1914 51 

"Abt. 4. No warships or ships assimilated thereto belonging to 
any of the belligerents shall have access to the said territory. 

"Art. 5. The provisions of article 4 do not apply to: 

"1. Warships or ships assimilated thereto which are forced to 
enter the ports or roadsteads of the State on account of damages 
or the state of the sea. Such ships may leave the said ports 
or roadsteads as soon as the circumstances which have driven 
them to take shelter there shall have ceased to exist. 

"2. Warships or ships assimilated thereto belonging to a 
belligerent- which anchor in a port or roadstead in the colonies 
or oversea possessions exclusively with the object of completing 
their provision of foodstuffs or fuel. These ships must leave as 
soon as the circumstances which have forced them to anchor 
shall have ceased to exist, subject to the condition that their 
stay in the roadstead or port shall not exceed 24 hours. 

"3. Warships or ships assimilated thereto belonging to a 
belligerent employed exclusively on a religious, scientific, or 
humanitarian mission." (1916 Naval War College, International 
Law Topics, p. 62.) 

In article 5 there is a distinction made between admis- 
sion to the continental waters (art. 5 — 1) and admission 
to waters of the colonies or overseas possessions (art. 
5 — 2). In the first case, exception is made for "damages 
or the state of the sea." In the colonies and overseas 
possessions, exception is made for fuel and foodstuffs. 
Owing to the limited coast line and few ports, it could 
not be expected that belligerents who had used any 
reasonable degree of care would be compelled to resort 
to a Dutch port for supplies or fuel. 

United States-Panama agreement, October 10, 191Jf. — 
During the period before the United States entered the 
World War, questions in regard to the treatment of ves- 
sels entering ports under American jurisdiction often 
arose. In the relations between the United States and 
Panama a protocol stated the attitude of these parties. 

"Protocol of an agreement concluded between Honorable 
Robert Lansing, Acting Secretary of State of the United • States, 
and Don Eusebio A. Morales, Envoy Extraordinary and Minis- 
ter Plenipotentiary of the Republic of Panama, signed the tenth 
day of October, 1914. 



52 VESSELS AND NEUTRAL PORTS 

"The undersigned, the Acting Secretary of State of the 
United States of America and the Envoy Extraordinary and 
Minister Plenipotentiary of the Republic of Panama, in view 
of the close association of the interests of their respective Gov- 
ernments on the Isthmus of Panama, and to the end that these 
interests may be conserved and that, when a state of war exists, 
the neutral obligations of both Governments as neutrals may be 
maintained, after having conferred on the subject and being 
duly empowered by their respective Governments, have agreed : 

"That hospitality extended in the waters of the Republic of 
Panama to a belligerent vessel of war or a vessel belligerent or 
neutral, whether armed or not, which is employed by a bel- 
ligerent power as a transport or lleet auxiliary or in any other 
way for the direct purpose of prosecuting or aiding hostilities, 
whether by land or sea, shall serve to deprive such vessel of 
like hospitality in the Panama Canal Zone for a period of three 
months, and rice versa. 

In testimony whereof, the undersigned have signed and sealed 
the present Protocol in the city of Washington, this tenth day 
vt October, 1914. 

Robert Lansing 
Eusekio A. Morales" 

(1916 Naval War College, International Law Topics, p. 94; 
38 Stat. 2042.). 

In accord with this protocol a neutral vessel, whether 
or not armed, if directly employed for aiding hostilities 
by land or sea might, so far as sojourn in the Canal Zone 
or in Panama is concerned, be treated as a belligerent 
vessel of war. 

Proclwnation, November 13, 1911^. — In rules 1 and 2 
of the proclamation of the President of the United 
States, November 13, 1914, relating to the neutrality of 
the Panama Canal Zone, the attitude of the United 
States was even more clearly stated than in the protocol 
with Panama of October 10, 1914. 

"Rule 1. A vessel of war, for the purposes of these rules, is 
defined as follows : a public armed vessel, under the command 
of an officer duly commissioned by the government, whose name 
appears on the list of officers of the military fleet, and the crew 
of which are under regular naval discipline, which vessel is 
qualified by its armament and the character of its personnel to 



PANAMA CANAL ZONE, 1914 53 

take offensive action against the public or private ships of the 
enemy. 

"Rule 2. In order to maintain both the neutrality of the Canal 
and that of the United States owning and operating it as a 
government enterprise, the same treatment, except as herein- 
after noted, as that given to vessels of war of the belligerents 
shall be given to every vessel, belligerent or neutral, whether 
armed or not, that does not fall under the definition of Rule 1, 
which vessel is employed by a belligerent Power as a transport 
or fleet auxiliary or in any other way for the direct purpose of 
prosecuting or aiding hostilities, whether by land or sea ; but 
such treatment shall not be given to a vessel fitted up and used 
exclusively as a hospital ship." (1916 Naval War College, In- 
ternational Law Topics, p. 97; 38 Stat. 2039.) 

Other rules of this proclamation provide for the same 
treatment in passage, taking supplies, fuel, etc., for 
"vessels of war of a belligerent or vessels falling under 
rule 2." Even in case of distress, vessels "falling under 
rule 2" were subject to the same restrictions as vessels of 
war. 

(c) The "Xibi" in a closed neutral port. — In time of 
war the extension of restrictions upon the movements 
of belligerent public vessels in neutral waters has been 
common. A state whether in time of peace or of war 
has jurisdiction over its territorial waters. As the char- 
acter of instruments of war has changed, regulations 
and responsibilities have changed. It was found essen- 
tial for neutrals to make different regulations for the 
sojourn and departure of vessels of war under sail and 
under steam as well as for aircraft. 

Ports closed to commerce are supposed to be closed to 
all vessels. In a naval closed port the control and often 
the ownership of the fuel is usually in the government. 
Any aid to a belligerent naval vessel in a neutral closed 
port would be of the nature of aid by neutral public 
authority which is not lawful. 

solution 

(a) 1. The Xara may remain in the port of neutral 
state B for 24 hours unless state B has previously issued 



54 VESSELS AND NEUTRAL PORTS 

special regulations. During the 24-hour sojourn the 
Xara may make such repairs as possible using the per- 
sonnel and material on board. After 24 hours the Xara 
should be interned. 

2. Unless neutral state B has previously issued special 
regulations, it may not decline to allow to the Aba the 
usual privileges granted to neutral merchant vessels in 
its harbors. 

3. If neutral state B and belligerent state X are not 
bound by special treaty agreement, and if state B has 
not previously issued special regulations, state B may 
legally decline to admit, except under the rules for ves- 
sels of war, the Xebe which has been transformed from 
a supply to a merchant vessel. 

(b) There is no obligation on the part of state E or 
other neutral states to treat the Dobo as an auxiliary of 
the navy of state Y. 

(c) If the Xibi, a vessel of war of state X, enters in 
distress a closed port of neutral state E, the Xibi should 
be interned or may be allowed or required to . depart 
under pledge to take no further part in the war. 



Situation II 

ACTION DURING CIVIL STRIFE 

There is a disturbed condition of affairs in state O r 
a party to the Havana Conventions of February 1928, 
which is followed by an organized armed attempt by the 
Liberal Party to overthrow the established government 
of President Smith in state O. No state has recognized 
the belligerency of the Liberal Party. 

(a) The Able, a vessel of war of the United States is 
in Obo, a port of state O. 

(1) The Ali, a merchant vessel flying the flag of the 
United States, which vessel is reported to have been 
chartered to a leader of the Liberal Party, is entering 
the port of Obo. The local authorities, having no naval 
force available, request the commander of the Able to 
seize or to prevent the landing of the cargo of the Ali. 

(2) In the port of Obo, the Ato, another merchant 
vessel flying the flag of the United States, is fitting out 
to cruise against the fleet of state O. The local authori- 
ties request the commander of the Able to seize or at 
least to prevent the sailing of the Ato. 

(b) At night the Anno, a cruiser of the United 
States, discovers within 3 miles of the coast of the 
United States a merchant vessel transferring coal to a 
vessel of war apparently flying the flag of the Liberal 
Party. On discovering the Armo, the merchant vessel 
and the vessel of war flee in opposite directions before 
their identity is established. 

(1) The commander of the Armo considers which 
vessel to pursue if either. 

(2) The commander of the Armo decides to pursue 
the vessel of war, which arrives in Port Obo before the 

55 



56 ACTION DURING CIVIL STRIFE 

Amw can overtake her. The Armo in the early morn- 
ing sails out to cruise along the coast of O, and sights 
the vessel of war 3 miles off the coast. 

(c) The Ova. originally a cruiser of state O, is seized 
by the Liberal Party, raises the flag of state M and 
puts to sea. 

(1) It is met by the Able and makes the customary 
salute to the flag officer of the United States vessel of 
war. 

(2) Later the Ora seizes a merchant vessel of the 
United States bound with a cargo of arms to a port oc- 
cupied by the forces of state O. The Ova takes the 
merchant vessel to Obo. The following day the Ora 
flying the flag of the Liberal Party is seen on the high 
seas by the Armo. 

What would be the lawful action in each case? 

solution 

(a) 1. The commander of the Able should decline the 
request of the local authorities, though he should warn 
the master of the All of the risk he runs. 

2. The commander of the Able should decline the re- 
quest of the local authorities, though he should warn 
the master of the Ato of the risk he runs. 

(b) 1. The commander of the Armo should pursue 
the vessel of war. 

2. The pursuit must not continue within the jurisdic- 
tion of state O and, when the pursuit is thus discon- 
tinued, cannot be resumed the following morning. 

(c) 1. The commander of the Able should not return 
the salute of the Ora which is under a false flag. 

2. The commander of the Anno should seize and 
hold the Ora pending instructions. 

NOTES 

Disturbed condition of affairs. — That there should be 
differences of opinion within states, and that partisans 



CENTKAL AMERICAN TREATY, 19 7 57 

should at times resort to the use of force in endeavoring 
to support their positions, is a common occurrence. 
Many new states have established themselves through 
such action. During the nineteenth century especially, 
uprisings ostensibly or really due to attempts to realize 
worthy political aims were frequent and states on the 
American continent looking to their own origins viewed 
these movements with little disfavor. 

Treaties, Central American States, 1907. — On Decem- 
ber 20, 1907, the delegates from the five Central Ameri- 
can States, Costa Rica, Guatemala, Honduras, Nica- 
ragua, and Salvador signed a general treaty of peace 
and amity at Washington. 

This treaty provided, in the first article, for a Cen- 
tral American Court of Justice and in articles following 
stated that — 

"Article II. Desiring to secure in the Republics of Central 
America the benefits which are derived from the maintenance of 
their institutions, and to contribute at the same time in strength- 
ening their stability and the prestige with which they ought to 
be surrounded, it is declared that every disposition or measure 
which may tend to alter the constitutional organization in any 
of them is to be deemed a menace to the peace of said Republics. 

"Article III. Taking into account the central geographical 
position of Honduras and the facilities which owing to this cir- 
cumstance have made its territory most often the theater of 
Central American conflicts, Honduras declares from now on its 
absolute neutrality in event of any conflict between the other 
Republics ; and the latter, in their turn provided such neutrality 
be observed, bind themselves to respect it and in no case to 
violate the Honduranean territory." (Foreign Relations, U. S., 
1907, Part II, p. 693.) 

In an additional convention of the same date it was 
agreed that, 

"The Governments of the High Contracting Parties shall not 
recognize any other Government which may come into power in 
any of the five Republics as a consequence of a coup d'itat, or of 
a revolution against the recognized Government, so long as the 
freely elected representatives of the people thereof have not con- 
stitutionally reorganized the country." (Ibid., p. 696.) 
81178—36 5 



58 ACTION DURING CIVIL STRIFE 

Nicaragua, 1909. — The plans for overthrow of one 
party and the establishment of another involving do- 
mestic disturbance have sometimes been known in ad- 
vance and instructions to foreign diplomatic agents 
have been given accordingly. 

In 1909 on October 7, a telegram was received by the 
Secretary of State from the American consul at Blue- 
fields that there was reason to believe, 

"that a revolution will start in Bluefields on the 8th ; that the 
State, with the present governor proclaimed provisional presi- 
dent, will constitute an independent republic, with Bluefields 
the capital ; appeal will be made to Washington immediately for 
recognition." (Foreign Relations, U. S., 1900, p. 452.) 

A telegram received by the Secretary of State 
October 12, reported that the provisional government 
was established on the tenth "without difficulty, or the 
firing of a shot", and that the new government "is 
friendly to American interests and is progressive", has 
granted the American consul recognition, "has formed 
new cabinet; and has sent him assurances in writing 
friendship American Government." The Acting Secre- 
tary of State sent to consul MofTatt a telegram to the 
following effect, 

"Depabtment of State, 
"Washington, October 13, 1909. 

"Mr. Adee instructs Mr. Moffatt to do nothing whatever which 
might indicate the recognition of provisional administration, and 
says he should have no official intercourse with it in his repre- 
sentative capacity. Mr. Adee adds that if any action of the 
temporary power should require interposition to protect Ameri- 
can interests Mr. Moffatt should personally and informally ad- 
dress whatever visible local agency may be in a position to 
afford de facto relief. Mr. Moffatt is directed to confine him- 
self strictly within these limits." (Ibid., p. 453.) 

Later, on November 21, 1909, the Secretary of State 
sent another telegram: 

"Depabtment of State, 
"Washington, November 21, 1909. 
"Mr. Knox states that in the light of recent occurrences, par- 
ticularly in regard to cases affecting American interests and 



NICARAGUAN STRIFE, 19 9 59 



property, it is appropriate that the revolutionary party should 
understand that the United States reserves all claims and 
rights growing out of acts or omissions of the revolutionary 
party to which this Government or its citizens may be entitled 
under international law, and that such timely reservation is 
not to be deemed to imply admission of a full state of revolu- 
tionary belligerency with the rights and obligations attaching 
thereto under the doctrines of international law. Mr. Knox 
refers particularly to the reported action of the revolutionary 
party in respect to the steamer Dictator which is under charter 
of the Bluefields Steamship Co., an American corporation, and 
says, this Government reserves all rights in respect to the valid- 
ity of any proceedings against that vessel as a prize of war, 
and that if the vessel is actually held by the revolutionary party 
it is suggested that it be released under bond from the charterers 
to insure her departure from Nicaragua and to engage that she 
shall not attempt to enter any invested port after due notice 
and warning of effective investment." (Ibid., p. 454.) 

In spite of the fact that Nicaragua was a party to the 
Central American treaties of 1907 which aimed to se- 
cure peace in that area, the disturbed conditions in 
Nicaragua in 1909 led the Secretary of State in a long 
note of December 1909 to say to the Nicaraguan Charge, 

"The Government of Nicaragua which you have hitherto repre- 
sented is hereby notified, as will be also the leaders of the 
revolution, that the Government of the United States will hold 
strictly accountable for the protection of American life and 
property the factions de facto in control of the eastern and 
western portions of the Republic of Nicaragua. * * * 

"From the foregoing it will be apparent to you that your office 
of charge d'affaires is at an end. I have the honor to inclose 
your passport, for use in case you desire to leave this country. 
I would add at the same time that, although your diplomatic 
quality is terminated, I shall be happy to receive you, as I 
shall be happy to receive the representative of the revolution, 
each as the unofficial channel of communication between the 
Government of the United States and the de facto authorities 
to whom I look for the protection of American interests pending 
the establishment in Nicaragua of a Government with which 
the United States can maintain diplomatic relations." (Ibid., 
p 456.) 



60 ACTION DURING CIVIL STRIFE 

Mexico, 1916. — In reply to a Senate resolution of Jan- 
uary 6, 1916, the Secretary of State said : 

"(1) The government at present existing in Mexico is a de 
facto government, established by military power, which has 
definitely committed itself to the holding of popular elections 
upon the restoration of domestic peace. 

"(2) This de facto Government of Mexico, of which Gen. 
Venustiano Carranza is the Chief Executive, was recognized by 
the Government of the United States on October 19, 1915, and 
a copy of the letter to Mr. Eliseo Arredondo, the representative 
of the de facto government at this capital, informing him of 
such recognition is hereto appended (inclosure No. 1). The 
said de facto government has since been recognized by sub- 
stantially all the countries of Latin America; also by Great 
Britain, France, Italy, Russia, Japan, Austria-Hungary, Ger- 
many, and Spain ; and several other countries have recently an- 
nounced their intention of extending recognition. The said 
de facto government is at present maintained at Queretaro, near 
Mexico City. 

"It can not be said that the de facto Government of Mexico 
is a constitutional government. The de facto government, like 
the majority of revolutionary governments, is of a military 
character, but, as already stated, that government has com- 
mitted itself to the holding of elections, and it is confidently 
expected that the present government will, within a reasonable 
time, be merged in or succeeded by a government organized 
under the constitution and laws of Mexico." (Foreign Rela- 
tions, U. S.. 1916, p. 469.) 

Other parts of the reply set forth the disturbed con- 
ditions in Mexico and showed what the United States 
had done and proposed to do in regard to the situation 
then prevailing. American troops were sent to the fron- 
tier to enforce the rules of neutrality and the neutrality 
statutes of the Federal Government. 

Owing to the disturbed conditions along the frontier, 
a reciprocal arrangement was made between the United 
States and Mexico by which troops of either state might 
pursue lawless bands into the territory of the other. 

"The Government of the United States, in view of the un- 
usual state of affairs which has existed for some time along the 
international boundary and earnestly desiring to cooperate with 



MEXICAN STRIFE, 1916 61 

the de facto Government of Mexico to suppress this state of 
lawlessness, of which the attack on Columbus, New Mexico, is 
a deplorable example, and to insure peace and order in the 
regions contiguous to the boundary between the two Republics, 
readily grants permission for military forces of the de facto 
Government of Mexico to cross the international boundary in 
pursuit of lawless bands of armed men who have entered Mexico 
from the United States, committed outrages on Mexican soil, 
and fled into the United States, on the understanding that the 
de facto Government of Mexico grants the reciprocal privilege 
that the military forces of the United States may pursue across 
the international boundary into Mexican territory lawless bands 
of armed men who have entered the United States from Mexico, 
committed outrages on American soil, and fled into Mexico. 

"The Government of the United States understands that in 
view of its agreement to this reciprocal arrangement proposed 
by the de facto Government the arrangement is now complete 
and in force and the reciprocal privileges thereunder may ac- 
cordingly be exercised by either Government without further 
interchange of views. 

"It is a matter of sincere gratification to the Government of 
the United States that the de facto Government of Mexico has 
evinced so cordial and friendly a spirit of cooperation in the 
efforts of the authorities of the United States to apprehend and 
punish the bands of outlaws who seek refuge beyond the inter- 
national boundary in the erroneous belief that the constituted 
authorities will resent any pursuit across the boundary by the 
forces of the Government whose citizens have suffered by the 
crimes of the fugitives. 

"With the same spirit of cordial friendship the Government 
of the United States will exercise the privilege granted by the 
de facto Government of Mexico in the hope and confident expec- 
tation that by their mutual efforts lawlessness will be eradicated 
and peace and order maintained in the territories of the United 
States and Mexico contiguous to the international boundary." 
(Ibid., p. 488.) 

That there might be no fear of intervention, the Secre- 
tary of State, under authority of the President, made a 
public statement of policy: 

"In order to remove any apprehension that may exist either 
in the United States or in Mexico, the President has authorized 
me to give in his name the public assurance that the military 
operations now in contemplation by this Government will be 



62 ACTIOX DURING CIVIL STRIFE 

scrupulously confined to the object already announced, and that 
in no circumstances will they be suffered to trench in any degree 
upon the sovereignty of Mexico or develop into intervention of 
any kind in the internal affairs of our sister Republic. On the 
contrary, what is now being done is deliberately intended to 
preclude the possibility of intervention." (Ibid., p. 4^9.) 

This position was approved by a congressional resolu- 
tion of March 17, 1916, and a detailed draft of an ar- 
rangement was proposed by Mexico, March 19, 1916. 
The problem of maintaining a position that would be 
free from suspicion when any intervention is under- 
taken is always difficult, and the situation in Mexico in 
1916 supports the position that no intervention of any 
kind should take place save under exceptional circum- 
stances, and then as a last resort. 

Civil strife. — The term, civil strife, is used in the 
Habana Convention of 1928: Rights and Duties of 
States in the Event of Civil Strife. 

The first paragragh of article I of this convention ob- 
ligates a contracting state to use the means at its dis- 
posal to prevent the promotion of civil strife in another 
state, party to the convention, by aid from within the 
jurisdiction of the first state. The second paragraph 
provides for internment of what are called rebel forces. 
The third paragraph forbids traffic in arms except with 
the established government, and the fourth paragraph 
binds a state to prevent fitting out of vessels "intended 
to operate in favor of the rebellion." 

Article 2 refers to insurgent vessels and article 3 pro- 
vides for treatment of the crews of insurgent vessels as 
political refugees. 

This convention seems, therefore, to relate to what has 
come to be called insurgency, implying the existence 
of an organizd body of men pursuing public ends by 
force of arms, and temporarily beyond the control of 
the civil authority of the established state. 

The United States at Montevideo Conference, 1933. — 
The Montevideo Conference of American States, 1933, 
considered the question of the rights and duties of states 



HABAXA CONVENTION, 19 2 8 63 

which had been referred to it by the Habana Confer- 
ence, 1928, a draft having been prepared by the Com- 
mission of Jurisconsults at Kio de Janeiro in 1927. It 
was stated that the questions were sufficiently developed 
to be susceptible of codification. Article 8 of the pro- 
posed Convention of the Rights and Duties of States 
said of intervention, "no state has the right to inter- 
vene in the internal or external affairs of another." 

Secretary Hull, of the delegation of the United 
States, commenting on this convention on December 19, 
1933, set forth the position of his Government, and, in 
signing the convention, reservation was made as fol- 
lows: 

"The Delegation of the United States of America, in signing 
the Convention on the Rights and Duties of States, does so with 
the express reservation presented to the Plenary Session of 
the Conference on December 22, 1933, which reservation reads 
as follows : 

"The Delegation of the United States, in voting 'yes' on the 
final vote on this committee recommendation and proposal, 
makes the same reservation to the eleven articles of the project 
or proposal that the United States Delegation made to the first 
ten articles during the final vote in the full Commission, which 
reservation is in words as follows : 

" 'The policy and attitude of the United States Government 
toward every important phase of international relationships in 
this hemisphere could scarcely be made more clear and definite 
than they have been made by both word and action especially 
since March 4. I have no disposition therefore to indulge in 
any repetition or rehersal of these acts and utterances and shall 
not do so. Every observing person must by this time thoroughly 
understand that under the Roosevelt Administration the United 
States Government is as much opposed as any other government 
to interference with the freedom, the sovereignty, or other in- 
ternal affairs or processes of the governments of other nations. 

" 'In addition to numerous acts and utterances in connection 
with the carrying out of these doctrines and policies, President 
Roosevelt, during recent weeks, gave out a public statement 
expressing his disposition to open negotiations with the Cuban 
Government for the purpose of dealing with the treaty which 
has existed since 1903. I feel safe in undertaking to say that 
under our support of the general principle of non-intervention as 



64 ACTION DUKING CIVIL STRIFE 

has been suggested, no government need fear any intervention 
on the part of the United States under the Roosevelt Adminis- 
tration. I think it unfortunate that during the brief period 
of this Conference there is apparently not time within which 
to prepare interpretations and definitions of these fundamental 
terms that are embraced in the report. Such definitions and 
interpretations would enable every government to proceed in 
a uniform way without any difference of opinion or of inter- 
pretations. I hope that at the earliest possible date such very 
important work will be done. In the meantime in case of 
differences of interpretations and also until they (the proposed 
doctrines and principles) can be worked out and codified for the 
common use of every government, I desire to say that the United 
States Government in all of its international associations and 
relationships and conduct will follow scrupulously the doctrines 
and policies which it has pursued since March 4 which are 
embodied in the different addresses of President Roosevelt since 
that time and in the recent peace address of myself on the 
15th day of December before this Conference and in the law 
of nations as generally recognized and accepted.' " (Report of 
the Delegates of the United States of America to the Seventh 
International Conference of American States, 1933, p. 20.) 

This is a very comprehensive reservation and would 
involve interpretation of many "acts and utterances" 
which might not always be similarly understood. 

Intewention, Montevideo, 1933. — A proposal for a 
definition of intervention was brought forward in the 
report of the second subcommittee on the rights and 
duties of states at the Montevideo, 1933, International 
Conference of American States. Concepts of noninter- 
vention, not always identical, had been discussed at 
length and with warm eloquence at the fifth session 
of the subcommittee on December 19, 1933. Some of the 
speakers had made very vigorous opposition to the point 
of view expressed by certain states at Habana in 1928 
that "Interposition is indispensable, in certain cases." 
This in 1933 was called "the nefarious principle of in- 
tervention." Some of the delegates called the Monte- 
video conference a "nonintervention conference." 

Article 1-10, inclusive, of the convention on rights 
and duties of states were approved by the second com- 



NONINTERVENTION, MONTEVIDEO, 19 3 3 65 

mittee without reservation other than "statements and 
declarations" made by the delegation of the United 
States. 

Article 11 of the convention was also approved by the 
second committee though the United States abstained 
from voting and some other votes were conditional. 
This article 11, providing for nonrecognition of terri- 
torial acquisitions originating in violence, was held by 
some of the delegates to be merely a corollary of the 
principle of nonintervention. 

There were questions as to the precise meaning of the 
word "intervention." One delegate maintained that 
"America knows perfectly well what intervention is, be- 
cause it has lived it", and the Cuban delegate affirmed 
that "Cuba was born with the congenital vice of inter- 
vention" in the Piatt amendment. 

A definition of intervention was at length proposed as 
follows : 

"Any act of a state through diplomatic representation, by 
armed force, or by any other means involving effective force, 
with a view to making the State's will dominate the will of an- 
other State, and, in general, any maneuver, interference or inter- 
position of any sort, employing such means, either directly or 
indirectly in matter of the obligations of another State, what- 
ever its motive, shall be considered as Intervention, and likewise 
a violation of International Law." (Seventh International Con- 
ference of American States, First, Second and Eighth Commit- 
tees, Minutes and Antecedents, p. 165.) 

Interpretation, 1936. — In an address of Under Secre- 
tary of State Phillips in Chicago, February 16, 1936, an 
interpretation of the clause relating to intervention in 
the convention on the rights and duties of states was 
given : 

"I have heard it said that the State Department has put into 
a treaty with Latin American countries the assurance that the 
United States would never again use force for any purpose. 
It is true that a convention signed at Montevideo, entitled 'Con- 
vention on the Rights and Duties of States', contained the pro- 
vision that 'no state has the right to intervene in the internal 



66 ACTION DURING CIVIL STRIFE 

or external affairs of another', and it is true also that our Gov- 
ernment is opposed to the interference with the freedom, the 
sovereignty, or the internal affairs of the governments of other 
nations, just as we Americans are opposed to the intervention in 
the affairs of this country by any foreign power. But our Gov- 
ernment, no more than any other responsible government, has 
never renounced the right to protect those legitimate rights of 
its citizens which are generally recognized and accepted by in- 
ternational law and by international conventions. The protec- 
tion of the lives of citizens is and must be a matter of first 
concern to any responsible government, whenever and wherever 
the local authorities of the country in which they reside are 
clearly unable to afford such protection, and whenever the lives 
of its citizens are in real jeopardy. 

"What we have renounced, however, is any right to claim 
that because we are more powerful than our neighbors we can 
use that superior force to intervene in the internal affairs of 
weaker nations, thereby acting in flagrant disregard of their 
sovereign rights. What we have renounced is a right to estab- 
lish an American police force in other independent nations 
whenever the properties of the American citizens resident 
therein are believed to be endangered." (Department of State 
Publication, no. 844, The United States in World Affairs, p. 8.) 

Nary attitude. 1891. — The laws in regard to conduct 
in time of insurrection particularly developed on the 
American continent because insurrections were more 
frequent in this area and many American states had 
originally based their right to exist upon successful 
revolution. 

On March 4, 1891, the Secretary of the Navy sent to 
Admiral McCann general instructions which are in 
many respects now generally accepted by other states 
and in some definitely embodied in treaties. 

"Insurgent vessels, although outlawed by Chilean Government, 
are not pirates unless committing acts of piracy. Observe strict 
neutrality. Take no part in troubles further than to protect 
American interests. Take whatever measures are necessary to 
prevent injury by insurgent vessels to lives or property of 
American citizens, including American telegraph cables. En- 
deavor to delay bombardment by insurgents until American 
citizens and property are removed, using force, if necessary, 
only as a last resort, and when serious injury is threatened. 



ATTITUDE OF THE NAVY 67 

American vessels seized by the insurgents without satisfactory 
compensation are liable to be recovered forcibly, but you should 
investigate matter fully before taking extreme measures, and 
use every precaution to avoid such measures if possible." 
(H. Ex. Doc. No. 91, 52d Cong., 1st sess., p. 245.) 

The provision in regard to piracy is now generally 
approved. There is much uncertainty as to what con- 
stitutes neutrality and as to the nature of neutral rights 
even in time of duly declared war. There would be, 
even after the receipt of the general instructions from 
the Secretary of the Navy, points upon which question 
might be raised and more explicit provisions were is- 
sued to meet other situations. 

"As a further and more explicit guide for your action you are 
directed : 

"(1) To abstain from any proceedings which shall be in the 
nature of assistance to either party in the present disturbance, 
or from which sympathy with either party could be inferred. 

"(2) In reference to the ships which have been declared out- 
lawed by the Chilean Government, if such ships attempt to com- 
mit injuries or depredations upon the person or property of 
Americans, you are authorized and directed to interfere in what- 
ever way may be deemed necessary to prevent such acts; but 
you are not to interfere except for the protection of the lives or 
property of American citizens. 

"(3) Vessels or other property belonging to our citizens which 
may have been seized by the insurgents upon the high seas and 
for which no just settlement or compensation has been made are 
liable to forcible recovery; but the facts should be ascertained 
before proceeding to extreme measures and all effort should be 
made to avoid such measures. 

"(4) Should bombardment of any place, by which the lives or 
property of Americans may be endangered, be attempted or 
threatened by such ships, you will, if and when your force is 
sufficient for the purpose, require them to refrain from bombard- 
ing the place until sufficient time has been allowed for placing 
American life and property in safety. 

"You will enforce this demand if it is refused, and if it is 
granted, proceed to give effect to the measures necessary for the 
security of such life or property. 

"(5) In reference to the granting of asylum, your ships will 
not, of course, be made a refuge for criminals. In the case of 



68 ACTION DURING CIVIL STRIFE 

persons other than criminals, they will afford shelter wherever 
it may be needed, to Americans first of all, and to others, in- 
cluding political refugees, as far as the claims of humanity may 
require and the service upon which you are engaged permit. 

"The obligation to receive political refugees and to afford them 
an asylum is, in general, one of pure humanity. It should not 
be continued beyond the urgent necessities of the situation, and 
should in no case become the means whereby the plans of con- 
tending factions or their leaders are facilitated. You are not to 
invite or encourage such refugees to come on board your ship, 
but, should they apply to you, your action will be governed by 
considerations of humanity and the exigencies of the service upon 
which you are engaged. When, however, a political refugee has 
embarked, in the territory of a third power, on board an Ameri- 
can ship as a passenger for purposes of innocent transit, and it 
appears upon the entry of such ship into the territorial waters 
that his life is in danger, it is your duty to extend to him an 
offer of asylum. 

"(6) Referring to paragraph 18, page 137, of the Navy Regu- 
lations of 1876, which is as follows: 

" 'If any vessel shall be taken acting as a vessel of war or a 
privateer without having proper commission so to act, the offi- 
cers and crew shall be considered as pirates and treated accord- 
ingly.' " 

"You are informed that this paragraph does not refer to 
vessels acting in the interests of insurgents and directing their 
hostilities solely against the State whose authority they have 
disputed. It is only when such vessels commit piratical acts 
that they are to be treated as pirates, and, unless their acts 
are of such a character or are directed against the persons 
or property of Americans you are not authorized to interfere 
with them. 

"(7) In all cases where it becomes necessary to take forcible 
measures, force will only be used as a last resort, and then only 
to the extent which is necessary to effect the object in view. 
(Ibid.) 

Restrictions upon the action of foreign vessels of 
war in ports where civil strife prevailed were later made 
particularly in regard to granting asylum on vessels of 
war which might be easily abused. 

Protection of alien property. — At the time of an in- 
surrection in Cuba in 1906, the American Charge d'Af- 



AKMS TRAFFIC AND CIVIL STRIFE 69 

f aires sent a telegram to the Secretary of State of which 
the following is a paraphrase : 

"Mr. Sleeper asks to be advised if the following is satisfactory 
reply and advice to send to Americans requesting protection of 
property: 'In all cases of damage, destruction, or seizure of 
property against the will of the owner by agents of the Govern- 
ment or other parties, a complaint stating the facts and con- 
taining a list of the property so damaged, destroyed, or seized 
should be made to the court having jurisdiction, a copy of said 
complaint being forwarded at the same time to this legation. 
Wherever possible a statement in case property is damaged 
or destroyed and a receipt in case property is appropriated, 
subscribed to by the person or persons responsible for such 
damage or destruction or making such appropriation should be 
procured.'" (Foreign Relations, U. S., 1906, Part I, p. 457.) 

This advice was approved by the Acting Secretary 
of State on August 29, 1906. 

In a report to the Secretary of State, Charge Sleeper 
said on September 8, 1906: 

"Regarding the safeguarding of American interests, I have to 
say that, so far as I can ascertain, no effort has been made by 
the Government to afford the protection which I have from time 
to time requested through the foreign office. Fortunately, there 
has been no loss of life or destruction of property thus far, the 
rebels having confined themselves to the seizure of animals, arms, 
and equipment." (Ibid, p. 471.) 

Owing to the then existing treaty relations between 
the United States and Cuba, the United States decided 
to intervene. Article 3 of the treaty of 1903 provided: 

"The Government of Cuba consents that the United States 
may exercise the right to intervene for the preservation of Cuban 
independence, the maintenance of a government adequate for 
the protection of life, property, and individual liberty, and for 
discharging the obligations with respect to Cuba imposed by the 
Treaty of Paris on the United States, now to be assumed and 
undertaken by the Government of Cuba." (33 U. S. Stat. 2248.) 

This treaty was terminated May 29, 1934. 

Arms traffic in civil strife. — While there are not, so 
far as the United States is concerned, many new features 
in the Habana Convention of 1928 on the Rights and 



70 ACTION DURING CIVIL STRIFE 

Duties of States in the Event of Civil Strife, it was the 
purpose of the conference to reach a general agreement. 
Traffic in arms with the established government was not 
restrained, but according to article 1, 

"The contracting states bind themselves to observe the follow- 
ing rules with regard to civil strife in another one of them : 

****** 

"3. To forbid the traffic in arms and war material, except 
when intended for the government, while the belligerency of the 
rebels has not been recognized, in which latter case the rules 
of neutrality shall be applied." (Report of the American Dele- 
gates, Sixth International Conference of American States, 
Habana, 1928. p. 228.) 

British action, Nanking, 1927. — The so-called Nanking 
incident of March 24 and 25, 1927, in which lives were 
taken and property destroyed made action for protec- 
tion essential. The Chinese requested an expression of 
regret from the British authorities, but were informed 
that protective measures were necessary. 

"Dr. C. T. Wang to Sir M. Lampson. 

"Nanking, August 9, 1928. 
"Sir: 

"Referring to the notes exchanged this day on the subject 
of the settlement of questions arising out of the Nanking inci- 
dent of the 24th March, 1927, I have the honour to invite your 
Excellency's attention to the fact that on that date fire was 
opened upon Socony Hill, at Nanking, by the British war vessel 
'Emerald,' then lying in the port. In view of this fact, the 
Nationalist Government earnestly hope that His Majesty's Gov- 
ernment in Great Britain will express regret at this action. 

"I avail, etc. 

Wang Cheng Ting" 

"Sir M. Lampson to Dr. C. T. Wang. 

Peking, August 9, 1928 
"Sir. 

I have the honour to acknowledge the receipt of your Excel- 
lency's note of to-day's date in which reference was made to the 
fact that on the 24th March, 1927, the British war vessel, 
H. M. S. 'Emerald,' then lying in the port, opened fire upon 
Socony Hill, at Nanking, and in which the hope was expressed 



INSUKGENT LIABILITY 71 

that His Majesty's Government in Great Britain would indicate 
their regret at this action. 

"In reply, I have to point out that the firing referred to was, 
in fact, a protective barrage strictly confined to the immediate 
neighbourhood of foreign houses in which a number of British 
subjects had been driven to seek refuge from the assaults of an 
unrestrained soldiery ; and not only did it provide the only con- 
ceivable means by which the lives of this party were saved from 
the danger that imminently threatened them, but it also made 
possible the evacuation of other British residents at Nanking, 
who were in actual peril of their lives. His Majesty's Govern- 
ment in Great Britain therefore feel that the measures taken 
by H. M. S. 'Emerald' were absolutely necessary for the protec- 
tion of British lives and property, however deeply they may 
deplore the fact that the circumstances at Nanking on the 24th 
March, 1927, were such as to render necessary the adoption of 
these measures. 

"I avail, etc. 

(For His Majesty's Minister), 

SIDNEY BARTON." 

(Parliamentary Papers, China No. 1 (1928), Cmd. 3188, p. 4.) 

Liability of insurgents. — Under the Habana Conven- 
tion of 1928 on the Rights and Duties of States in the 
Event of Civil Strife it was provided in article 2 that — 

"The declaration of piracy against vessels which have risen 
in arms, emanating from a government, is not binding upon the 
other states. 

"The state that may be injured by depredations originating 
from insurgent vessels is entitled to adopt the following 
punitive measures against them : Should the authors of the 
damages be warships, it may capture and return them to the 
government of the state to which they belong, for their trial ; 
should the damage originate with merchantmen, the injured 
state may capture and subject them to the appropriate penal 
laws. 

"The insurgent vessel, whether a warship or a merchantman, 
which flies the flag of a foreign country to shield its actions, 
may also be captured and tried by the state of said flag." 
(Report of the American Delegates, Sixth International Con- 
ference of American States, Habana, 1928. p. 229.) 

The first paragraph of article 2 in regard to decla- 
ration of piracy affirms a position which had long been 



72 ACTION DURING CIVIL STRIFE 

taken by many states, particularly on the American 
continent where many existing governments have been 
set up by armed revolution. 

The second paragraph of article 2 supports a posi- 
tion which has been sometimes affirmed when the in- 
surgent ship is taken at the time of committing the act 
of depredation. This paragraph does not specify any 
limit of time during which the vessel of the insurgent 
may be liable to capture, but prescribes what may be 
done to the vessel of war or merchant vessel with 
which the damage may originate. 

The third paragraph of article 2 places the trial 
for this flying of a false flag by an insurgent "to shield 
its actions" in the state of the flag, but the false flag 
would not prevent capture by another state than that 
of the false flag which the vessel was flying if the 
vessel had committed depredations against that state. 
If, however, the only offense is flying of the false flag, 
the state whose flag is falsely flown would be entitled 
to capture and try the vessel. 

The Perlas, 1909. — In a communication to the Hon- 
duranean Minister, November 9, 1909, Mr. Knox, Secre- 
tary of State, said, 

"The gasoline vessel Perlas is American built and was re- 
cently sent to Nicaragua, there to engage in ordinary and 
legitimate business. The vessel is the property of citizens of 
the United States. 

"It is reported to this department that she was recently pressed 
into service by the revolutionary forces at Bluefields and dis- 
patched with a passenger for Puerto Barrios. On the way she 
was obliged to put into Puerto Cortes for fuel, where she has 
been detained by the authorities of the Honduranean Government. 

"The Government of the United States does not raise the 
question as to the right of Honduras to hold the passenger that 
this vessel was carrying at the time it put into Puerto Cortes, 
but insists that the detention of the vessel is without warrant or 
authority, and has demanded and will continue to demand its 
immediate release from the Honduranean authorities. The right 
to arrest the passenger does not carry with it the right to detain 
the vessel." (Foreign Relations, U. S., 1900, p. 377.) 



PKOTECTION OF FLAG 73 

On November 6, 1909, the paraphrase of a telegram to 
Minister Brown refers to the Colombian revolution of 

1885, 

"Department of State, 
"Washington, November 6, 1909. 
"In re the detention by Honduras of the Perlas Co.'s launch, 
Mr. Knox instructs Mr. Brown to remind the minister for foreign 
affairs that the Government of the United States has upon occa- 
sion asserted and exercised the right to restore to the legitimate 
use of American owners vessels that had been impressed by 
revolutionists even going so far, in the Colombian revolution of 
1885, as the retaking by a warship of such a vessel on the seas. 
Mr. Knox expresses the .hope, however, that this aspect of the 
question will not be presented for discussion." (Ibid., p. 377.) 

Flag similar to national flag. — Flying of false flag in 
time of peace or during an insurrection is regarded as 
a ground for protest. Even the flying of a flag which 
might be easily mistaken for the flag of a foreign state, 
has also been the ground for protest. There are, how- 
ever, flags of several states which are not easily dis- 
tinguishable at a distance, particularly when the distinc- 
tion is mainly one of color. 

In 1903 a Brazilian steamship line was flying a house 
flag similar to the flag of the United States, and the 
American minister brought the matter to the attention 
of the Brazilian Government. 

American Legation, 
Petropolis, May 25, 1903. 

"Mr. Minister: I herewith enclose you a sketch of the house 
flag used by the Brazilian firm of Rosa, Carvalho & Co., of Bahia 
and Pelotas, and regularly displayed in their ships which are 
engaged in the coastwise trade, and are registered at Pelotas. 

"You will observe that this flag is substantially identical with 
the flag of my country, having 13 stripes alternately red and 
white, and a blue field in which stars are disposed in a circle 
in one of the forms authorized by our statutes and frequently 
used. 

"The striking resemblance will appear by comparing the litho- 
graph copy of our national ensign which I enclose with the 
sketch of the house flag of Rosa, Carvalho & Co. 
81178—36 6 



74 ACTIOX DURING CIVIL STRIFE 

''Our consular officers in Brazil have called my attention to 
the use of this ensign, and I believe you will agree with me that 

confusion may arise from the similarity of the two flags, and 
that Brazilian port officials as well as our consular officers might 
well mistake a Brazilian ship for an American or an American 
for a Brazilian. 

"I do not know whether your Government has adopted any 
regulations in regard to the use of a national ensign as a house 
flag of a private firm, but I venture to call your attention for 
such action by the proper officials as may seem to you and them 
proper. 

"D. E. Thompson."' 

(Foreign Relations, U. S., 1904, p. 102.) 

The flag used by the steamship company had within 
the circle of 13 stars the monogram of the company, but 
this was not visible at any considerable distance. 

The action of the American minister was reported on 
February 9, 1904, to have led to the "discontinuance of 
this abuse by order of the authorities." 

A like occurrence in the following year led to another 
protest and a reply from the Brazilian Minister of For- 
eign Affairs as follows : 

"Ministry of Foreign Affairs, 

"Rio de Janeiro, June 14, 1905. 
"Mr. Ambassador: With reference to my note of the 2d of 
March ultimo, I have the honor to inform your excellency that 
the minister of marine has already instructed the captain of the 
port of Bahia to provide for the retiring of the flag flown by the 
schooner Oliveira, and on the same occasion he issued a circular 
to the captains of the ports of the Republic, prohibiting Brazilian 
shipping from using ensigns which resemble the flag of any 
country. 

"I improve, etc., 

"Rio Branco." 
(Foreign Relations, U. S., 1905, p. 99.) 

Attitude of the United States, 1914. — Many differences 
of opinion have arisen in regard to the jurisdiction over 
private merchant vessels lawfully flying the flag of one 
state when in the port of another state. In 1914 the 
British Government informed the United States that as 
to criminal jurisdiction, 



COALING IN TIME OF PEACE 75 

"The view adopted by His Majesty's Government has been that 
British jurisdiction in such cases is complete, but that has in 
several cases been disputed by the foreign Governments con- 
cerned." (Foreign Relations, U. S. 1914, p. 307.) 

The British Government therefore proposed an in- 
vestigation of the law and practice as to the exercise of 
criminal and civil jurisdiction over foreign merchant 
vessels in national ports and over national vessels in for- 
eign ports. The Secretary of State of the United States 
made reply by citing many cases and quoting from 
diplomatic and other documents. In this long reply, 
it was said : 

"With reference to the question of the jurisdiction over 
American merchant vessels in foreign territorial waters, it may 
be stated that the Government of the United States in the past 
has asserted in behalf of its vessels the rights which, as indi- 
cated by the judicial decisions to which attention has been 
called, are accorded to foreign vessels in waters of the United 
States. This Government, while conceding on the one hand 
that, when one of its vessels visits the port of another country 
for the purposes of trade, it is amenable to the jurisdiction 
of that country and is subject to the laws which govern the 
port it visits so long as it remains unless it is otherwise pro- 
vided by treaty, has, on the other hand, on a number of occa- 
sions, made clear its views to the effect that, by comity, matters 
of discipline and all things done on board which affect only the 
vessels or those belonging to her and do not involve the peace 
or dignity of the country or the tranquillity of the port should 
be left by the local government to be dealt with by the authori- 
ties of the nation to which the vessel belongs, as the laws of 
that nation or the interests of its commerce may require." 
(Ibid, p. 312.) 

Permitted coaling in time of peace. — Taking fuel by 
a vessel of war from a supply ship under its flag in for- 
eign waters without previous arrangement may not be 
permitted. Sometimes advance arrangements of a gen- 
eral character are made. 

Owing to differences which had arisen, a reciprocal 
arrangement was made between the United States and 
Mexico in 1907 when the United States wished to sta- 



76 ACTIO X DURING CIVIL STRIFE 

tion coaling vessels in Magdalena Bay. In regard to 
this, the Mexican Minister of Foreign Affairs sent the 
following communication to the American Charge 
d'Affaires : 

"Department of Foreign Affairs, 

"Mexico, Xovember 16, 1907. 

"Mr. Charge D'affaires : I have received your note, dated 
the 9th instant, in which you acknowledge the receipt of mine 
of the 4th, in which, acceding to the request of your Govern- 
ment, I advised you concerning that which Mexico considers 
reciprocity in regard to the permission for the stay of two coal- 
ing barges in Magdalena Bay, destined to supply the American 
squadron. 

"You have kindly expressed your acceptance of the under- 
standing of the Mexican Government about reciprocity, as also 
that the American Government is disposed to grant permission 
to Mexican men of war and other vessels to anchor or take coal 
in American ports, and you close your note by saying that with 
reference to coaling, the laws of the United States permit the 
same to all foreign vessels, this being the practice constantly 
observed by the United States. 

"The above assertion from you compels me to make an ex- 
planation, which I consider in every sense necessary. 

"In the same manner that the United States does, Mexico 
grants to all kinds of vessels in times of peace to anchor and 
take coal within Mexican waters, receiving them with the usual 
courtesy, permitting men of war to remain stationed in Mexican 
waters only during a short period of time, while the anchorage 
of the American coaling barges will be permanent during a 
period of three years, according to the communication relative 
to the matter addressed by the Executive to the Senate of 
Mexico, concerning which I had the honor to inform the embassy 
in my note of October 25 last. 

"Therefore, I beg you to kindly advise me if the intention 
of your Government regarding reciprocity for the supply of 
Mexican war vessels is that they can remain stationed in Ameri- 
can waters during the same period of three years, or only during 
the time ordinarily granted to all other foreign vessels. 

"I consider your reply indispensable in order to act in accord- 
ance with the decision of the Senate, and I renew, etc. 

"Igno. Mariscal." 

(Foreign Relations, U. S., 1907, part 2, p. 845.) 



USE OF FOREIGN FLAG 77 

The United States a month later expressed its 
willingness to make a reciprocal arrangement. 

"American Embassy, 
"Mexico, December 17, 1D07. 

"Mr. Subsecretary : Referring to the note of your depart- 
ment of November 16, on the subject of the privilege desired by 
my Government of stationing coaling barges in Magdalena Bay, 
all of which was telegraphed to Washington by Mr. Coolidge : 

"I now have a telegram from Mr. Root in which he regrets 
deeply that action has not before been taken on this telegram, 
he having been under the impression that it had been acted 
upon until the receipt of my telegram of Saturday, the 14th 
instant. 

"I am instructed to say to the Government of Mexico that it 
is the intention of the American Government regarding reci- 
procity for the supply of Mexican war vessels, that they can 
remain stationed in American waters during the same period 
for which that privilege is accorded to the vessels of the United 
States in pursuance of our request. 

"In other words, the Government of the United States will 
grant to Mexico, in the event that such privileges are desired, 
the same that Mexico is asked to grant to the American Gov- 
ernment in the way of privileges to American coaling vessels 
in Mexican waters. 

"The delay in answering your department's note of No- 
vember 16, reported to Washington by telegraph, seems to have 
been caused by referring the matter to the Navy Department, 
where an unexpected delay occurred. 

"I avail, etc., 

"D. E. Thompson." 
(Ibid., p. 846.) 

Use of foreign flag. — The respect for the flag of a 
nation has become in recent wars a matter of special 
concern and often of legislation. Even the occasions on 
which a flag may be displayed and the purposes for 
which it may be used, have been prescribed. Restric- 
tions may apply to the use of a national or of a foreign 
flag. 

The use of flags in the time of war is of special im- 
portance, and the consequences of misuse may be seri- 
ous. Denmark regulated the use of belligerent flags in 
1915 even on land by a notification stating : 



78 ACTION DURING CIVIL STRIFE 

"it is forbidden in this country to hoist any other flag than the 
Dannebrog, as it is likewise forbidden to make use of the flag of 
a belligerent power either under the open sky or in inns, public 
houses, or other places where the public is admitted, whether 
the use thereof is for decoration or any other purposes." (1917 
Naval War College, International Law Documents, p. 83.) 

Norway assumed surveillance of vessels in Norwegian 
waters under a notification of October 1, 1915, prescrib- 
ing: 

"Section 1. Vessels in Norwegian waters shall hoist the na- 
tional flag on arrival at a place of anchorage, where Norwegian 
war or guard ships lie, and also when such ships are in sight. 
While in Norwegian waters they shall stop immediately when 
it is ordered by Norwegian war or guard ships, e. g., when a 
warning signal is uiven by steam whistle, hoisting a signal, or a 
warning shot." (Ibid, p. 193.) 

As it would be difficult to regulate movements of 
submarines, it was provided that in Norwegian waters 
submarines should navigate only on the surface and 
fly their national flag. Other states made similar regu- 
lations. Special regulations were made during the 
World War in regard to the use of false colors. During 
the World War, by joint resolution of Congress, ap- 
proved June 30, 1917, American authorities w T ere directed 
to take over a vessel in American jurisdiction or 

" 'which at the time of coming into such jurisdiction was owned 
in whole or in part by any corporation, citizen, or subject of 
any nation with which the United States may be at war when 
such vessel shall be taken, or was flying the flag or was 
under register of any such nation or any political subdivision or 
municipality thereof.'" (Ibid, p. 246.) 

Liability vmder charter. — The charter party, as the 
contract for hiring, places the vessel according to the 
terms of the contract under the control of the char- 
terer. It may be presumed that both parties to the 
contract know what is involved in its performance. 

In the Code of Private International Law of the 
Sixth Conference of American States, Habana, 1928, in 



LAW OF THE FLAG 79 

title III referring to maritime and air commerce it was 
stated : 

"Article 274. The nationality of ships is proved hy the naviga- 
tion license and the certificate of registration and has the flag 
as an apparent distinctive symbol. 

"Article 275. The law of the flag governs the forms of pub- 
licity required for the transfer of property in a ship. 

"Article 276. The power of judicial attachment and sale of 
a ship, whether or not it is loaded and cleared, should be 
subject to the law of the place where it is situated. 

"Article 277. The right of the creditors after the sale of the 
ship, and their extinguishment, are regulated by the law of the 
flag. 

"Article 278. Maritime hypothecation, privileges, and real 
guaranties, constituted in accordance with the law of the flag, 
have extraterritorial effect even in those countries the legislation 
of which does not recognize nor regulate such hypothecation. 

"Article 279. The powers and obligations of the master and 
the liability of the proporietors and ship's husbands for their 
acts are also subject to the law of the flag. 

"Article 280. The recognition of the ship, the request for a 
pilot, and the sanitary police depend upon the territorial law. 

"Article 281. The obligations of the officers and seamen and 
the internal order of the vessel are subject to the law of the flag. 

"Article 282, The preceding provisions of this chapter are 
also applicable to aircraft. 

"Article 283. The rules on nationality of the proprietors of 
ships and aircraft and ship's husbands, as well as of officers 
and crew, are of an international public order." (Report of the 
Delegates of the United States to the Sixth International Confer- 
ence of American States, Habana, 1928, p. 139.) 

The Argentine delegation made certain reservations 
in regard to this proposed code: 

"12. It makes specific reservation of the application of the 
'law of the flag' to questions relating to maritime law, especially 
as regards the charter party and its legal effect, as it considers 
that these should be subject to the law and jurisdiction of the 
country of the port of destination." (Ibid., p. 167.) 

Paraguay also made reservation as to the "law of the 
flag." 

The delegates of the United States abstained from 
voting for the code, though they expressed the thought 



80 ACTION DURING CIVIL STRIFE 

that later the Government "may be enabled to adhere 
to at least a large portion thereof." 

Navy regulations. — The conduct of a naval force of 
one state when in the territorial waters or port of a 
foreign state has often led to misunderstandings. To 
avoid controversies states have issued regulations to 
their naval officers providing in some respects in detail 
the line of action to be followed. In general, the naval 
officer is not to assume any functions of the diplomatic 
or consular officers except in the absence of such officers 
from a foreign port and even then to use greatest care 
in showing respect to the local authorities. 

The United States Navy Regulations provide in 
article 720 : 

"In the absence of a diplomatic or consular officer of the 
United States at a foreign port the commander in chief, as 
senior officer present, has authority — 

"(a) To exercise the powers of a consul in relation to mariners 
of the United States (Sec. 1433, R. S.) ; 

"(b) To communicate or remonstrate with foreign civil au- 
thorities as may be necessary ; 

"(c) To urge upon citizens of the United States the necessity 
of abstaining from participation in political controversies or 
violations of the laws of neutrality." 

In article 723 is the general statement, "The use of 
force against a foreign and friendly state or against 
anyone within the territories thereof is illegal." 

Of course, the right of self-preservation is always 
assumed, though the exercise of this right is strictly 
circumscribed. 

Insurrection in state O. — In this situation there is a 
disturbed condition of affairs in state O, followed by an 
organized armed attempt to attain a political objective, 
a condition of insurgency. 

The 1928 Habana Convention on Rights and Duties 
of States in the Event of Civil Strife aimed to clarify 
the rules of action under such conditions as are set forth 
in situation II. Article 1 of the convention provides for 



HABANA CONVENTION, 192 8 81 

the application of certain restraints within its own juris- 
diction by a party to the treaty when there is civil strife 
in another state party to the convention. Article 2 treats 
particularly of measures that may be taken by the estab- 
lished state in which the insurrection exists. Article 
3 defines the treatment to be given an insurgent vessel in 
a foreign port. By the terms of article 4 this convention 
does not affect obligations previously undertaken 
through international agreements. 

In accord with this Convention on the Rights and 
Duties of States in Event of Civil Strife, no authority is 
conferred upon a foreign state to interfere with acts 
taking place within the jurisdiction of the state in which 
the civil strife has arisen. Such acts are within the juris- 
diction of the disturbed state and, though the local au- 
thorities may ask of a foreign vessel of war aid against 
insurgents, the vessel of war may not extend such aid 
except on instruction from his government. 

A vessel of war of the United States would, under 
article 2 of this convention, be under obligation to pre- 
vent within jurisdiction of the United States the un- 
lawful use of waters, by nationals or aliens for "gather- 
ing elements" "for the purpose of starting or promoting 
civil strife." An insurgent vessel of war, taking coal 
within the maritime jurisdiction of the United States, 
would be violating this article and should be appre- 
hended though pursuit cannot lawfully continue into a 
foreign jurisdiction and pursuit for this offense, once 
abandoned, may not be resumed. 

The transfer of a vessel of war can only take place 
through an act of the state to which the vessel belongs 
except in time of lawful war. Salutes would be made 
only to flags of vessels of duly recognized states. An 
insurgent vessel raising a false flag is not entitled to a 
salute but may be captured and turned over to the state 
of that flag. 



82 ACTION DURING CIVIL STRIFE 

As an insurgent has no recognized prize court its 
vessels may not lawfully seize foreign merchant vessels 
though insurgents may deny or even use force to pre- 
vent access to the ports of the established state. 

Under article 2 of the 1928 Habana Convention an 
injured foreign state is entitled to capture vessels of 
Avar of insurgents when such vessels have committed 
depredations and these vessels may be returned to the 
state to which they belong for trial. Some of the facts 
may be difficult to determine and accordingly official in- 
structions from the proper authorities may be requested. 

SOLUTION 

(a) 1. The commander of the Able should decline the 
request of the local authorities, though he should warn 
the master of the All of the risk he runs. 

2. The commander of the A ble should decline the re- 
quest of the local authorities, though he should warn 
the master of the Ato of the risk he runs. 

(b) 1. The commander of the Anno should pursue 
the vessel of war. 

2. The pursuit must not continue within the jurisdic- 
tion of state O and, when the pursuit is thus discontin- 
ued, cannot be resumed the following morning. 

(c) 1. The commander of the Able should not return 
the salute of the Ova which is under a false flag. 

2. The commander of the Armo should seize and hold 
the Or a pending instructions. 



Situation III 

AIRCRAFT— HOSPITAL SHIPS 

States X and Y are at war. Other states are neutral. 

(a) State X proclaims and maintains with vessels of 
war the surface blockade of the port of Mola on the coast 
of Y near the boundary of state B. Blockade proclama- 
tion states that the blockade includes aircraft. Aircraft 
and submarines of Y and of neutral flags pass the block- 
ade line with ease. 

(1) A private seaplane of state B becomes disabled 
and alights inside the blockade lines. A cruiser of X 
seizes the seaplane on the ground that it has violated 
the blockade. 

(2) Would the treatment of the seaplane be the same 
if it had alighted 50 miles outside the blockading lines 
and had been met by a vessel of war of X which had 
no connection with the blockading forces. 

(b) A military aircraft of state Y becomes disabled 
off the coast of state B and lands at an airport of B. 
State B immediately interns the aircraft and crew. 

(c) At a port of R, remote from X and Y, an armed 
private aircraft of X calls to obtain fuel to take the air- 
craft directly to its port of departure in state X. 

(d) An aircraft of X dropped a tear gas bomb upon 
a vessel of war of Y. Y declares that this act is contrary 
to the laws of war and that it will in retaliation use 
bacteriological bombs against X. 

(e) A military hospital ship of X, the Safety flying 
the Red Cross flag passing within sight of but not near 
a fleet of Y, reports what it has seen to the commander 
of the fleet of X. 

83 



84 AIRCRAFT HOSPITAL SHIPS 

(1) Neutral state C learning of this action declines 
to allow the Safety any rights in its ports other than 
those granted to vessels of war. 

(2) The fleet of Y fires upon and captures the Safety 
and takes it in to a port of Y. 

What action would existing law sustain in each of the 
above cases? 

SOLUTION 

(a) 1. The private neutral seaplane alighting within 
the blockade lines should be seized. The proof of inno- 
cence rests upon the seaplane. 

2. The private neutral seaplane alighting 50 miles 
outside the blockade lines is not liable to seizure unless 
on grounds discovered by visit and search. 

(b) The military aircraft and crew should be interned 
by state B. 

(c) The armed private aircraft of state X should not 
be supplied with fuel in a port of R. 

(d) The use of tear gas by one belligerent against 
another is not prohibited, therefore the resort to the use 
of bacteriological bombs in retaliation is unlawful. 

(e) 1. Neutral state C, while not under obligation to 
pass upon the character of an act of a hospital ship of a 
belligerent, may treat such a ship as a vessel of war if 
convinced that the ship has forfeited its immunities. 

2. The capture of the Safety by the fleet of Y is law- 
ful, but care should be taken to restrict the use of force 
to the minimum. 

NOTES 

Surface blockade. — While it must be admitted that 
blockade involving absolute prevention of access to the 
coast of the enemy has rarely, if ever, been possible, 
blockade involving danger to the party attempting to 
pass has been the rule except in paper blockades. 

As was said in 1899 in the case of the Olinde 
Rod Agues : 



SURFACE BLOCKADE 85 

"To be binding, the blockade must be known, and the blockad- 
ing force must be present ; but is there any rule determining 
that the presence of a particular force is essential in order to 
render a blockade effective? We do not think so, but, on the 
contrary, that the test is whether the blockade is practically 
effective, and that that is a question, though a mixed one, more 
of fact than of law. 

"The fourth maxim of the Declaration of Paris (April 16, 
1856), was: 'Blockades, in order to be binding, must be effective; 
that is to say, maintained by a force sufficient really to prevent 
access to the coast of the enemy.' Manifestly this broad defini- 
tion was not intended to be literally applied. The object was 
to correct the abuse, in the early part of the century, of paper 
blockades, where extensive coasts were put under blockade by 
proclamation, without the presence of any force, or an inadequate 
force, and the question of what might be sufficient force was 
necessarily left to be determined according to the particular 
circumstances." (174 U. S. 510.) 

Later in the same case it was said : 

"it cannot be that a vessel actually captured in attempting to 
enter a blockaded port, after warning entered on her log by 
a cruiser off that port only a few days before, could dispute the 
efficiency of the force to which she was subjected. 

"As we hold that an effective blockade is a blockade so 
effective as to make it dangerous in fact for vessels to attempt 
to enter the blockaded port, it follows that the question of ef- 
fectiveness is not controlled by the number of the blockading 
force. In other words, the***position cannot be maintained that 
one modern cruiser though sufficient in fact is not sufficient 
as matter of law." (Ibid.) 

That the nature of blockade was changing was ad- 
mitted in 1899 and there have been further changes in 
the physical requirements since that time. Referring 
further to the blockaded port of San Juan, Porto 
Rico, where the Olinde Rodrigues was seized it was 
said, 

"On July 14 and thereafter the port was blockaded by the 
armored cruiser New Orleans, whose maximum speed was 
twenty-two knots, and her armament six 6-inch breech-loading 
rifles, four 4.7-inch breech-loading rifles, ten 6-pounders, four 
1.5-inch guns, corresponding to 3-pounders; four 3-pounders in 
the tops ; four 37-millimetre automatic guns, corresponding to 1- 



86 AIRCRAFT HOSPITAL SHIPS 

pounders. The range <>f her guns was five and one half sea 
milt's or six and a quarter statute miles. If stationary, she 
could command a circle of thirteen miles in diameter; if moving, 
at maximum speed, she could cover in five minutes any point 
on a circle of seventeen miles diameter; and in ten minutes 
any point on a circle of nineteen miles diameter; her electric 
search lights could sweep the sea by night for ten miles dis- 
tance: her motive power made her independent of winds and 
currents: in these respects and in her armament and increased 
range of guns she so far surpassed in effectiveness the old- 
time war ships that it would he Inadmissible to hold that even 
if a century ago more than one ship was helieved to be re- 
quired for an effective blockade, therefore this cruiser was not 
sufficient to blockade this port." (Ibid.) 

It would be difficult for a vessel which has been cap- 
tured by a blockading force to maintain that the block- 
ade was not effective. 

It is further entirely conceivable that a blockade for 
the purpose of preventing access of bulky articles 
might be maintained as effective when small articles 
might be taken in to the port by aircraft or submarines. 

Restrictions on rise of aircraft, 1899, 1907. — The use 
of aircraft had sufficiently developed at the end of the 
nineteenth century to bring it before the First Hague 
Peace Conference of 1899 and, at this conference, the 
discharge of projectiles from balloons and analogous 
methods of warfare was prohibited for 5 years. While 
this period of prohibition expired during the Russo- 
Japanese War, both parties respected the prohibition to 
the end of the war. 

Progress in matters of aerial navigation was so rapid 
that at the Second Hague Peace Conference in 1907 
the states having large military forces were unwilling 
to renew the prohibition of 1899. There were, however, 
many conferences upon varying aspects of aerial navi- 
gation, and military plans recognized that the use of 
the air for war purposes should be anticipated. 

The experience of the World War gave rise to many 
questions in regard to the rights of aircraft as affecting 
both neutrals and belligerents at sea and on land. 



AIR AND MARINE BLOCKADE 87 

The matter was brought before the legal advisers 
at the Washington Naval Conference, 1921-22, but was 
referred to the Commission of Jurists appointed under 
a resolution of the conference. 

This Commission met at The Hague and concluded 
its report on February 19, 1923, particularly treating 
of the control of radio and aircraft in time of war. The 
rules of this report have never been formally adopted, 
but are weighty evidence of what may be considered 
reasonable conduct under conditions covered by the 
rules. 

Air and marine blockade. — That blockade by surface 
vessels may for certain purposes need the aid of air- 
craft to render it effective under modern conditions is 
evident. If, as is probable, wars of the future are to 
use aircraft, then the effectiveness of blockade will be 
measured by consideration of the factors entering into 
the blockade in which air as well as surface vessels are 
involved. 

Upon this type of blockade Mr. J. M. Spaight in his 
discussion of the effectiveness of a blockade in the air, 
"assuming that neutral contiguous states would allow 
passage through their jurisdiction to the blockade- 
running aircraft," says: 

"If a blockade is to be recognized as extended from the sea 
to the air above, it must be effective in the air as well as 
on the sea, but a different degree of effectiveness will probably 
be demanded in the air, because of the greater difficulty of 
controlling passage in that element. Take, for instance, the 
blockade of a short extent of enemy coast surrounded on each 
side by a neutral coast. Access to such a coast by marine 
craft can easily be prevented, the line to be watched being, 
ex hypothesis short; but, for that same reason, access by aircraft 
would be extremely difficult to prevent, for, instead of attempting 
direct entry or exit, the blockade-running aircraft would always 
approach or leave the blockaded area through neutral juris- 
diction, into which the belligerent military aircraft acting with 
the blockading warships could not follow them. Even where 
a long line of enemy coast is being blockaded, aircraft would 
still have an advantage in attempting entry or egress ; they 



88 AIRCRAFT HOSPITAL SHIPS 

would not be tied to the ports, as marine craft are, but could 
pass in or out anywhere, provided always that their radius 
of action was sufficient to enable them to reach a safe landing- 
ground. 

"The fact that aircraft could thus find a 'way round' would not 
make the blockade ineffective, within the formula of the Declara- 
tion of Paris, nor entitle neutral States to claim that it should 
not be recognized as a legally existent blockade, the breach of 
which involved the condemnation of such aircraft as could in 
fact be captured. The fact that ships can pass (even in fairly 
considerable numbers, as did the blockade-runners in the Ameri- 
can War of Secession) through the blockading cruisers is no 
giound for holding the blockade to be ineffective, provided that 
there is on the whole a real danger of capture for any individual 
vessel making the attempt. This principle will, no doubt, be 
recognized in a still greater degree in regard to aircraft, and 
it will be accepted as inevitable that the proportion of captures 
to successful evasions which would entitle neutrals to challenge 
the effectiveness of the blockade must be lower in their case 
than in that of ships." (Spaight, Air Power and War Rights, 
2d edition, p. 397.) 

(a) Blockade; surface, suhinavine, and aircraft. — 
The Declaration of Paris, 1856, provides that "Block- 
ades in order to be binding- must be effective." This 
provision was drawn for the purpose of putting an end 
to so-called "paper blockades." This declaration made 
in 1856 referred to blockades in which surface ships 
were the customary means of rendering the closing of 
the ports effective. The same principle would be gen- 
erally applicable whether the proclamation was in re- 
gard to a blockade on, over, or under the sea; to be 
binding the blockade should be effective. 

In 1899, Mr. Chief Justice Fuller, in the case of the 
Olinde Rodrigues, said, "To be binding, the blockade 
must be known, and the blockading force must be pres- 
ent; but is there any rule of law determining that the 
presence of a particular force is essential in order to 
render the blockade effective ? We do not think so, but 
on the contrary, that the test is whether the blockade 
is practically effective, and that that is a question, 



AIRCRAFT IN DISTRESS 89 

though a mixed one, more of fact than of law." (174 
U. S. 510.) In general it has been considered that an 
effective blockade is one that renders access or egress 
from the blockaded port dangerous, and that, in a case 
where the craft that has attempted to pass the block- 
ade and has been captured cannot establish that, it is 
not effective. The captured craft may, however, plead 
on other grounds that it has not violated the blockade. 
The burden of such proof rests upon the captured 
craft. 

A blockade maintained by surface vessels only with- 
out means of preventing or rendering dangerous the 
passage of aircraft or submarine would be a "paper 
blockade" insofar as such craft were concerned even 
though proclaimed to include these. 

Any seaplane met at sea by a vessel of war may be 
visited and searched to determine its relation to the 
hostilities and it may be treated according to the evi- 
dence found. In recent years on account of improved 
means of communication it would be difficult to prove 
ignorance. 

Aircraft in distress. — The rules for entry of surface 
vessels in distress would not apply to aircraft. In the 
period before the World War it was thought by some 
that aircraft might enter and sojourn in neutral juris- 
diction under the same conditions as those prescribed 
for surface vessels. The practice of states while neutral 
in the World War from the Netherlands to China was 
to use the force at their disposal to intern belligerent 
aircraft entering their jurisdiction. Dutch gunners shot 
down aircraft flying over Dutch territory. Other states 
did the same. Disabled aircraft entering neutral juris- 
diction were usually detained and interned until the end 
of the war. Force majeure or distress were regarded as 
too indefinite to differentiate from intentional entrance 
in case of aircraft and the accounts of aviators of the 
World War seem to justify the neutral practice of prohi- 

81178—36 7 



90 AIRCRAFT HOSPITAL SHIPS 

bition of entrance and internment in case of violation 
of the prohibition. Articles 39, 40, and 42 of the Hague 
Rules of 1923 show the attitude of the Commission of 
Jurists. 

"Article 29. Belligerent aircraft are bound to respect the 
rights of neutral powers and to abstain within the jurisdiction 
of a neutral State from the commission of any act which it is 
the duty of that State to prevent. 

"Article 40. Belligerent military aircraft are forbidden to 
enter the jurisdiction of a neutral State." * * * 

"Article 42. A neutral Government must use the means at its 
disposal to prevent the entry within its jurisdiction of belligerent 
military aircraft and to compel them to alight if they have 
entered such jurisdiction. 

"A neutral Government shall use the means at its disposal 
to intern any belligerent military aircraft which is within its 
jurisdiction after having alighted for any reason whatsover, 
together with its crew and the passengers, if any." (1924 Naval 
War College, International Law Documents, p. 131.) 

Internment of British seaplanes. — In a memorandum 
of the British Foreign Office of May 31, 1916, the Neth- 
erlands Government was requested to permit a seaplane 
which had been rescued and taken in by a Dutch lugger 
to be dispatched to Great Britain. Certain principles 
were set forth in this memorandum : 

"A Seaplane belonging to His Majesty's forces was recently 
obliged on account of engine trouble to descend while over the 
North Sea. The pilot was rescued by a Dutch fishing boat, 
which took both him and the seaplane into a Dutch port. The 
Netherlands Government, though they have released the pilot, 
appear to consider it their duty to retain the seaplane for the 
duration of the war. After a careful consideration of the ques- 
tion, His Majesty's Government feel bound to dissent from this 
view, and believe that the Netherlands Government are under 
no obligation to intern the machine. 

"The Netherlands Government, in releasing the pilot, appear 
to have considered that he was in the same position as a member 
of the crew of a ship-wrecked belligerent warship who is picked 
up by a neutral merchant vessel and conveyed to a neutral 
port ; such a person, under the rules of The Hague Convention 
No. 10, of 1907, is entitled to be released. His Majesty's Gov- 



INTERNMENT OF AIRCRAFT 91 

crnment believe their decision on this point to be correct and 
consider that, while none of the rules expressly laid down by 
international law exactly fit the case of the seaplane, a further 
examination of the principles which lie behind the rules which 
compel neutrals to intern belligerent forces in certain circum- 
stances shows that the seaplane should also be released. 

"The rules concerning internment are not based on any one 
single and uniform principle. This fact explains itself when 
one takes into consideration that these rules have grown up 
gradually and severally and were, before the Peace Confer- 
ence at The Hague in 1907, customarily agreed upon from dif- 
ferent motives. The consequence is that the rules governing 
internment differ not only with regard to the internment of 
soldiers on neutral land and internment of warships in neutral 
harbours, but also with regard to the internment of troops in 
general, and the internment of such soldiers as have escaped 
from captivity. 

"One of the basic reasons for the rules concerning intern- 
ment is no doubt the fact that a belligerent is entitled to insist 
that such enemy forces as have crossed neutral territory for 
the purpose of escaping capture, shall not be enabled to leave 
the neutral territory and again resort to hostilities. But this 
concerns only enemV forces which have deliberately entered 
neutral territory for the purpose of escaping capture: it can- 
not apply to such enemy forces as for other purposes cross into 
neutral territory, or even cross accidentally without knowledge 
of the neutral frontier. Now, all these must likewise be in- 
terned, and the basic reason for their internment is that, in 
case these troops are not interned, the other belligerent would 
be justified in crossing into the neutral territory on his part 
and attacking the enemy there. 

"As regards the internment of men-of-war, the basic reasons 
are also manifold. One is — just as in the case of fugitive 
troops — that a belligerent is entitled to insist that enemy men- 
of-war which deliberately enter neutral harbours for the pur- 
pose of escaping capture, shall not after some length of time 
be allowed to leave and resort to hostilities again, although 
they may leave if they only stay twenty-four hours. Other rea- 
sons are that a neutral must not allow belligerent men-of-war 
to make his harbours the base of military operations, the base 
of supply beyond a certain limit, the base for repairing vital 
damages, and the like." (Parliamentary Papers, Miscellaneous, 
No. 4 [1918] Cd. 8985, p. 3; see also 1931 Naval War College, 
International Law Situations, pp. 14-22.) 



92 AIRCRAFT — HOSPITAL SHIPS 

The Netherlands explained that under strict rules 
of neutrality, the Queen's Government, to their regret, 
were unable to comply with the request of the British 
Government until the end of the war. 

Later in the case of the British seaplane No. 1232, 
which came down in the North Sea, September 23, 
1917. sixty miles off the Dutch coast and was rescued 
and towed by a Dutch fishing vessel to the Helder, the 
British claimed that the seaplane should be released as 
well as the personnel. The Dutch Government re- 
leased the personnel, but declined to release the aircraft 
till the end of the war. 

Naval War College discussion, 1926. — In referring to 

internment during the World War, it was said in the 

solution of situation III, 1926, that: 

"During the World War for the first time the question of air- 
craft in relation to neutral jurisdiction became one of great 
practical importance. While practice was not, at first, in every 
instance uniform, gradually it came to be ^recognized that bel- 
ligerent aircraft .had no right to enter neutral jurisdiction. Some 
of the neutral states for a time questioned the necessity of deny- 
ing entry to aircraft, and considered permitting entry on terms 
analogous to those applied to maritime vessels of war. Switzer- 
land and the Netherlands, from their geographical position as 
neutral islands surrounded by belligerents, had to face the prob- 
lem in more varied manifestations. Both states maintained the 
right to use necessary force to prevent entrance of belligerent 
aircraft or even to intern aircraft entering under force majeure. 
Disabled belligerent aircraft, aircraft trying to escape from the 
enemy, aircraft lost in fog or storm, were with their personnel 
forced to land and interned by neutral states. Early in the war 
there was some uncertainty in regard to hydroplanes in Norway, 
and later Denmark permitted some German deserters to remain 
after entering Danish jurisdiction in a stolen aircraft. The 
Netherlands interned American aircraft alighting within Dutch 
jurisdiction after a battle over the high sea with Germany. The 
Swiss authorities similarly interned American fliers when return- 
ing from an observation flight and forced by motor trouble to 
land within Swiss jurisdiction. There were many cases in which 
the crews were interned when the aircraft were destroyed either 
intentionally or by accident. W.hen aircraft personnel was 



HAGUE RULES, 19 2 8 93 

rescued on the high seas and brought within neutral jurisdic- 
tion, the practice was usually to release them." (1926 Naval 
War College, International Law Situations, p. 100.) 

(b) Aircraft. — The treatment of military aircraft 
alighting within neutral jurisdiction "for any reason 
whatsoever" was discussed at The Hague in the Com- 
mission of Jurists in 1923 and in meetings of other 
bodies since that time. The concensus of opinion has 
been that the duty of internment of military aircraft 
is even more imperative than that to intern troops 
entering neutral jurisdiction. 

Article 53, Hague Rules, 1923.— -The report of the 
Commission of Jurists. February 19. 1923, contained as 
article 53 regulations under which neutral private air- 
craft were liable to capture. While these rules have 
not been internationally adopted, they embody many 
accepted principles of international law. 

Article 53 provides that: 

"A neutral private aircraft is liable to capture if it * * *. 

"(a) Resists the legitimate exercise of belligerent rights. 

"(b) Violates a prohibition of which it has had notice issued 
by a belligerent commanding officer under article 30. 

"(c) Is engaged in unneutral service. 

"(d) Is armed in time of war when outside the jurisdiction 
of its own country. 

"(e) Has no external marks or uses false marks. 

"(f) Has no papers or insufficient or irregular papers. 

"(g) Is manifestly out of the line between the point of de- 
parture and the point of destination indicated in its papers 
and after such enquiries as the belligerent may deem necessary, 
no good cause is shown for the deviation. The aircraft, to- 
gether with its crew and passengers, if any, may be detained 
by the belligerent, pending such enquiries. 

"(h) Carries, or itself constitutes, contraband of war. 

"(i) Is engaged in breach of a blockade duly established 
and effectively maintained. 

"(k) Has been transferred from belligerent to neutral na- 
tionality at a date and in circumstances indicating an intention 
of evading the consequences to which an enemy aircraft, as 
such, is exposed. 



94 AIRCRAFT — HOSPITAL SHIPS 

"Provided that in each case (except (k) ) the ground for 
capture shall he an act carried out in the flight in which the 
neutral aircraft came into belligerent hands, i. e., since it 
left its point of departure and before it reached its point of 
destination." (1924 Naval War College, International Law Doc- 
uments, p. 146.) 

Paragraph (i) of these rules was quite fully dis- 
cussed by the Commission, and their report shows the 
trend of the discussion. 

"(i) The ninth ground for capture is that the aircraft is en- 
gaged in a breach of blockade. 'Blockade' is here used in the 
same sense in which it is employed in Chapter 1 of the Decla- 
ration of London, that is to say, an operation of war for the 
purpose of preventing by the use of warships ingress or egress 
of commerce to or from a defined portion of the enemy's 
coast. It has no reference to a blockade enforced without the 
use of warships, nor does it cover military investments of par- 
ticular localities on land. These operations, which may be 
termed 'aerial blockade,' were the subject of special examina- 
tion by the experts attached to the various Delegations, who 
framed a special report on the subject for consideration by the 
Full Commission. The conditions contemplated in this sub- 
head are those of warships enforcing a blockade at sea with 
aircraft acting in co-operation with them. As the primary ele- 
ments of the blockade will, therefore, be maritime, the recog- 
nized principles applicable to such blockade, as for instance, 
that it must be effective (Declaration of Paris, article 4), 
and that it must be duly notified and its precise limits fixed, 
will also apply. This is intended to be shown by the use of 
the words 'breach of blockade duly established and effectively 
maintained' in the text of the sub-head. 

"It is too early yet to indicate with precision the extent to 
which the co-operation of aircraft in the maintenance of block- 
ade at sea may be possible; experience alone can show. Never- 
theless, it is necessary to indicate the sense in which the Com- 
mission has used the word 'effective.' As pointed out in the 
Declaration of London, the effectiveness of a blockade is a 
question of fact. The word 'effective' is intended to ensure that 
it must be maintained by a force sufficient really to prevent 
access to the enemy coast-line. The prize court may, for instance, 
have to consider what proportion of surface vessels can escape 
the watchfulness of the blockading squadrons without endanger- 
ing the effectiveness of the blockade ; this is a question which the 



AHMED AIRCRAFT 95 

prize court alone can determine. In the same way, this question 
may have to be considered where aircraft are co-operaiing in 
the maintenance of a blockade. 

"The invention of the aircraft cannot impose upon a belligerent 
who desires to institute a blockade the obligation to employ 
aircraft in cooperation with his naval forces. If he does not 
do so, the effectiveness of the blockade would not be affected 
by failure to stop aircraft passing through. It is only where the 
belligerent endeavors to render his blockade effective in the 
air-space above the sea as well as on the surface itself that 
captures of aircraft will be made and that any question of the 
effectiveness of the blockade in the air could arise. 

"The facility with which an aircraft, desirous of entering the 
blockaded area, could evade the blockade by passing outside the 
geographical limits of the blockade has not escaped the atten- 
tion of the Commission. This practical question may affect 
the extent to which belligerents will resort to blockade in future, 
but it does not affect the fact that where a blockade has been 
established and an aircraft attempts to pass through into the 
blockaded area within the limits of the blockade, it should be 
liable to capture. 

"The Netherlands Delegation proposed to suppress (i) on the 
grounds that air blockade could not be effectively maintained, 
basing its opinion on its interpretation of the experts' report 
on the subject. 

"The British, French, Italian and Japanese Delegations voted 
for its maintenance. The American Delegation voted for its 
maintenance ad referendum." (Ibid., p. 144.) 

Armed private aircraft. — The Hague Commission of 
1923 also gave consideration to the arming of private 
aircraft and expressed the opinion that the interests of 
all would be better served if the arming of private air- 
craft should be prohibited. Since 1923 this opinion has 
been repeatedly confirmed because giving rise to many 
possible misunderstandings and there has been intro- 
duced the general understanding that public aircraft 
only may be armed. 

(c) Military aircraft in neutral jurisdiction. — While 
there is still doubt in regard to the obligations of a 
neutral state in respect to private aircraft of a bel- 
ligerent nationality, the rules of the Hague Commis- 



96 AIRCRAFT HOSPITAL SHIPS 

sion of Jurists of 1923 are generally considered as bind- 
ing as to public and military aircraft. These rules of 
the Hague Commission were based on a draft sub- 
mitted by the American delegation. 

The report of the Commission in commenting on this 
article says, 

"The provision in the article is limited to military aircraft be- 
cause it is only in respect of such craft that the prohibition on 
entry is absolute. Under article 12 the admission of private or 
public non-military aircraft is within the discretion of the neu- 
tral State. Where such aircraft penetrate within neutral juris- 
diction in violation of the measures prescribed by the neutral 
Power, they will be subject to such penalties as the neutral 
Power may enact ; these may or may not include internment. 
Recognition of this fact has enabled the Commission to omit a 
provision which figured as article 11 in the American draft: 

'A neutral Government may intern any aircraft of belligerent 
nationality not conforming to its regulations.' 

"The obligation on the part of the neutral Power to intern 
covers not only the aircraft, but its equipment and contents. 
The obligation is not affected by the circumstance which led to 
the military aircraft coming within the jurisdiction. It applies 
whether the belligerent aircraft entered neutral jurisdiction, 
voluntarily or involuntarily, and whatever the cause. It is an 
obligation owed to the opposing belligerent and is based upon the 
fact that the aircraft has come into an area where it is not 
subject to attack by its opponent. 

"The only exceptions to the obligation to intern an aircraft 
are those arising under articles 17 and 41. The first relates 
to flying ambulances. Under the second, an aircraft on board 
a warship is deemed to be part of her, and therefore will fol- 
low the fate of that warship if she enters neutral ports or 
Maters. If she enters under circumstances which render her 
immune from internment, such aircraft will likewise escape 
internment. 

"The obligation to intern belligerent military aircraft enter- 
ing neutral jurisdiction entails also the obligation to intern 
the personnel. These will in general be combatant members of 
the belligerent fighting forces, but experience has already shown 
that in time of war military aeroplanes are employed for trans- 
porting passengers. As it may safely be assumed that in time 
of war a passenger would not be carried on a belligerent mili- 
tary aircraft unless his journey was a matter of importance to 



KETALIATIOX 97 

the Government, it seems reasonable also to comprise such 
passengers in the category of persons to be interned." (Ibid, 
p. 133.) 

Retaliation. — Particularly during and since the World 
War the idea of retaliation has received renewed atten- 
tion. Ketaliation was before 1914 regarded as in the 
realm of acts not in accord with international law which 
might be resorted to against an opponent who in war 
disregarded the law of war. Retaliatory measures were 
to be strictly limited to remedying the breach of the 
law by the enemy and to be directed toward the enemy 
though a neutral might be inconvenienced or even inci- 
dentally injured, but the act of retaliation should not be 
aimed at the neutral or directly restrict the rights of a 
neutral. It was admitted that the law of contraband, 
blockade, and unneutral service did limit the peacetime 
rights of a neutral state, but these restrictions were gen- 
erally accepted. 

Retaliation has usually been threatened or resorted 
to when new methods or means of war have come into 
use. Threats were made in the Franco-Prussian War, 
1870, that balloons would be treated as spies, and in the 
Russo-Japanese War, 1901—5, that newspaper corre- 
spondents using radio would be treated as spies. Dur- 
ing the World War there were many propositions to 
the effect that aviators, if captured, should be hanged or 
immediately shot, or in any case, should be treated as 
criminals. Similar propositions were advanced in re- 
gard to the personnel of submarines regardless of their 
conduct. 

In the time of war there is always a ready response 
to rumors of unlawful conduct on the part of an op- 
ponent. Propaganda and war hysteria serve to make 
demands for retaliation or for reprisals popular and 
to make pictures of enemy disregard of law readily 
accepted. 

While there have been attempts to regulate in some 
degree reprisals on land by international conventions, 



98 AIRCRAFT HOSPITAL SHIPS 

such conventions have not been formally extended to 
maritime and aerial warfare. It would, however, be- 
safe to assume that in principle the same law would 
apply over, on, and in the sea. 

The late Prof. A. Pearce Higgins, who aided in pre- 
paring some of the arguments for the British Govern- 
ment in prize cases, after the cases of the Zamora, 
Leonard, and Stigstad, proposed the following bases for 
consideration : 

"1. Retaliation is a right of the belligerent which must be exer- 
cised only after the greatest provocation, and as a last resort. 

"2. Retaliatory measures must primarily be directed only 
against the enemy and need not be of an identical character 
with the wrong complained of. 

"3. In the exercise of retaliation the fundamental laws of 
humanity must be observed. 

"4. In all cases of retaliation which involve inconvenience or 
detriment to neutrals, Prize Courts of the belligerents should 
have jurisdiction both to enquire into the facts alleged as giving 
rise to the retaliatory measures, and also to decide whether the 
means adopted inflict on neutrals a degree of inconvenience in 
excess of that necessary to terminate the alleged illegalities. 

"5. Neutrals should be allowed compensation in all cases 
where there is undue delay in dealing with their cases in the 
belligerent Prize Courts under retaliatory orders, or where ship 
or cargo is released in consequence of an erroneous application 
of the order. 

"6. Retaliatory orders, since they are in derogation of the 
general rules of law, must, in case of ambiguity of language, be 
construed against the states issuing them." (Pearce Higgins, 
International Law and Relations, p. 237.) 

Protocol on gases, 1925. — At the Washington Con- 
ference on the Limitation of Armament, 1921-22, the 
proposal to limit the use of gas was coupled with regu- 
lations in the use of submarines. The Advisory Board 
of the American delegation submitted a report from its 
subcommittee on new agencies of warfare which con- 
tained the following: 

"Resolved, That chemical warfare, including the use of gases, 
whether toxic or nontoxic, should be prohibited by international 



USE OF GAS 99 

agreement, and should be classed with such unfair methods of 
warfare as poisoning wells, introducing germs of disease, and 
other methods that are abhorrent in modern warfare." (Con- 
ference on the Limitation of Armament, Washington, November 
12, 1921-February 6, 1922, p. 732.) 

The French version of this resolution was as follows : 

"II est decide: Que la guerre chimique, comprenant l'usage 
des gaz, toxiques ou non toxiques, devrait etre interdite par un 
accord international, et classee parmi les methodes de guerre 
deloyales, telles que l'empoisonnement des puits, la propagation 
de germes de maladies et autres methodes execrables de la guerre 
moderne." (Ibid, p. 733.) 

It will be observed that the form in both languages 
is "toxic or nontoxic." The chairman of the conference, 
Mr. Secretary Hughes, also called attention to a report 
of the General Board of the United States Navy in 
which, referring to the question "Should gas warfare be 
prohibited," it was stated: 

"4. The two principles in warfare, (1) that unnecessary suf- 
fering in the destruction of combatants should be avoided, (2) 
that innocent noncombatants should not be destroyed, have been 
accepted by the civilized world for more than one hundred years. 
The use of gases in warfare in so far as they violate these two 
principles is almost universally condemned to-day, despite its 
practice for a certain period during the world war. 

"5. Certain gases, for example, tear gas, could be used without 
violating the two principles above cited. Other gases will, no 
doubt, be invented which could be so employed ; but there will 
be great difficulty in a clear and definite demarcation between 
the lethal gases and those which produce unnecessary suffering 
as distinguished from those gases which simply disable tempo- 
rarily. Among the gases existing to-day there is undoubtedly a 
difference of opinion as to the class to which certain gasesi 
belong. Moreover, the diffusion of all these gases is practically 
beyond control and many innocent non-combatants would share 
in the suffering of the war, even if the result did not produce 
death or a permanent disability. 

"6. The General Board foresees great difficulty in clearly limit- 
ing gases so as to avoid unnecessary suffering in gas warfare 
and in enforcing rules which will avert suffering or the possible 
destruction of innocent lives of noncombatants, including women 



100 AIRCRAFT — HOSPITAL SHIPS 

and children. Gas warfare threatens to become so efficient as to 
endanger the very existence of civilization. 

"7. The General Board believes it to be sound policy to prohibit 
gas warfare in every form and against every objective, and so 
recommends." (Ibid, p. 734.) 

Reference in the discussion was made to article 171 
of the Treaty of Versailles, June 28, 1919, which as ap- 
plying to gas in the English and French is : 

"The use of asphyxiating, poisonous or other gases and all 
the analogous liquids, materials or devices being prohibited, 
their manufacture and importation are strictly forbidden in 
Germany." 

"The same applies to materials specially intended for the 
manufacture, storage and use of the said products or devices." 
(Ibid, p. 738.) 

"L'emploi des gaz asphyxiants, toxiques ou similaires, ainsi 
que de tous liquides, matieres ou procedes analogues, etant 
prohibe la fabrication et l'importation en sont rigoureusement 
interdites en Allemagne. 

"II en est de meme du materiel specialement destine it la 
fabrication, a la conservation ou a l'usage desdits produits ou 
procedes." (Ibid, p. 739.) 

A convention embodying this principle was drawn 
up at the "Washington Conference, but did not become 
effective because not ratified by all the powers. 

In 1925, however, a protocol relating to gas only was 
opened for signature at Geneva, and a large number of 
ratifications or adhesions have been deposited. The 
parts of this protocol referring particularly to the 
conduct of war are in English and French as follows : 

"Whereas the use in war of asphyxiating, poisonous or other 
gases, and of all analogous liquids materials or devices, has 
been justly condemned by the general opinion of the civilized 
world ; and 

"Whereas the prohibition of such use has been declared in 
Treaties to which the majority of Powers of the world are 
Parties : and 

"To the end that this prohibition shall be universally ac- 
cepted as a part of International Law, binding alike the con- 
science and the practice of nations ; 
Declaije : 

"That the High Contracting Parties, so far as they are not 
already Parties to Treaties prohibiting such use, accept this 



USE OF GAS 101 

prohibition, agree to extend this prohibition to the use of bac- 
teriological methods of warfare and agree to be bound as be- 
tween themselves according to the terms of this declaration." 
(94 League of Nations Treaty Series, p. 65.) 

"Considerant que l'emploi a la guerre de gaz asphyxiants, 
toxiques ou similaires, ainsi que de tous liquides, matieres ou 
procedes analogues, a ete a juste titre condamne par l'opinion 
generate du monde civilise ; 

"Considerant que l'interdiction de cet emploi a ete formulee 
dans des traites auxquels sont Parties la plupart des Puis- 
sances du monde; 

"Dans le dessein de faire universellement reconnaitre comme 
incorporee au droit international cette interdiction, qui s'impose 
egalement a la conscience et a la pratique des nations, 
"Declarext : 

"Que les Hautes Parties contractantes, en tant qu'elles ne 
sont pas deja" parties a des traites prohibant cet emploi, 
reconnaissent cette interdiction, acceptent d'£tendre cette inter- 
diction d'emploi aux moyens de guerre bacteriologiques et 
conviennent de se considerer comme liees entre elles aux termes 
de cette declaration." (Ibid, p. 65.) 

It would seem that the prohibition in English in the 
words "asplryxiating, poisonous, or other gases" is not 
identical with the French "gaz asphyxiants, toxiques ou 
similaires." The English would seem to be a general 
prohibition of the use of gas while the French would 
prohibit gases of specific types. Both would prohibit 
bacteriological warfare. 

It could scarcely be asserted even in 1925 that the use 
of all kinds of gases "had been condemned by the gen- 
eral opinion of the civilized world." Indeed smoke 
screens and similar methods were then and are now 
approved. It may be difficult to make a legal distinc- 
tion between smoke in the eyes of an enemy and a 
gas that may cause tears, while neither may cause suf- 
fering which the protocol aims to prohibit and which 
"has been justly condemned by the general opinion of 
the civilized world." 

Treaty of Versailles, article 171. — The treaty of Ver- 
sailles though signed by a large number of states was 



102 AIRCRAFT HOSPITAL SHIPS 

not ratified by all the signatories, and some of its pro- 
visions have for various reasons become inoperative. 

Article 171 in the French and English versions of 
the Treatv of Versailles is as follows : 

"Article 171." 

"L'einploi des gaz asphyxiants, toxiques ou similaiies, ainsi 
que de tous liquides, matieres ou procedes analogues, 6tant 
prohibe, la fabrication et l'importation en sont rigoureusement 
interdites en Allemagne. 

"II en est de meme du materiel specialenient destine a la fabri- 
cation, a la conservation ou a l'usage desdits produits ou pro- 
cedes. 

"Sont egalement prohibees la fabrication et l'importation en 
Allemagne des chars blindes, tanks ou de tout autre engin simi- 
laire pouvant servir a des buts de guerre." 

"Article 171." 

"The use of asphyxiating, poisonous or other gases and all 
analogous liquids, materials or devices being prohibited, their 
manufacture and importation are strictly forbidden in Germany. 

"The same applies to materials specially intended for the 
manufacture, storage and use of the said products or devices. 

"The manufacture and the importation into Germany of 
armoured cars, tanks and all similar constructions suitable for 
use in war are also prohibited." 

While the accuracy of the translation of the article 
may be open to question, the English form does not seem 
to conform to international law because there are some 
gases other than asphyxiating and poisonous, the use of 
which is not prohibited in war. If a gas causes unneces- 
sary suffering, its use would be considered contrary to 
international law. The use of a tear gas bomb might be 
preferred to a projectile that would result in asphyxiat- 
ing the personnel of the vessel of war by drowning, and 
tear gas has not yet been included in the list of pro- 
hibited gases. 

Bombardment from airwaft. — Regulations in regard 
io the discharge of projectiles from aircraft have been 
made. None are now generally accepted unless it be 



.AERIAL BOMBARDMENT 103 

admitted that an amendment in Laws and Customs of 
War on Land of 1907 by which it was thought by some 
the prohibition of undefended towns was extended to 
operations of aircraft. The 1899 convention had pro- 
hibited bombardment of undefended "towns, villages, 
habitations, or buildings." The 1907 inserted the words 
"by any means whatever." This would not in any case 
apply to dropping bombs on a vessel of war. 

The proposed Hague rules of 1923 in regard to aerial 
warfare in article 24 provide : 

"1. Aerial bombardment is legitimate only when directed at a 
military objective, that is to say, an object of which the de- 
struction or injury would constitute a distinct military ad- 
vantage to the belligerent. 

"2. Such bombardment is legitimate only when directed ex- 
clusively at the following objectives: military forces; military 
works ; military establishments or depots ; factories constituting 
important and well-known centres engaged in the manufacture 
of arms, ammunition or distinctively military supplies; lines of 
communication or transportation used for military purposes. 

"3. The bombardment of cities, towns, villages, dwellings or 
buildings not in the immediate neighbourhood of the operations 
of land forces is prohibited. In cases where the objectives 
specified in paragraph 2 are so situated that they cannot be 
bombarded without the indiscriminate bombardment of the 
civilian population, the aircraft must abstain from bombardment. 

"4. In the immediate neighbourhood of the operations of land 
forces, the bombardment of cities, towns, villages, dwellings or 
buildings is legitimate provided that there exists a reasonable 
presumption that the military concentration is sufficiently im- 
portant to justify such bombardment, having regard to the danger 
thus caused to the civilian population. 

"5. A belligerent State is liable to pay compensation for 
injuries to person or to property caused by the violation by any 
of its officers or forces of the provisions of this article." (1924 
Naval War College, International Law Documents, p. 120.) 

Attention on this article was particularly fixed upon 
land warfare and the report of the Commission of 
Jurists explains the article as follows : 

"Agreement on the following article specifying the objects 
which may legitimately be bombarded from the air was not 



104 AIRCRAFT HOSPITAL SHIPS 

reached without prolonged discussion. Numerous proposals were 
put forward by the various delegations before unanimity was 
ultimately attained. Tbe text of these proposals will be found 
in the minutes. In particular, mention may be made of an 
Italian proposal of the 8th February, on which the text ulti- 
mately adopted was in great part founded. Regret was expressed 
by some delegations that a more far-reaching prohibition did not 
meet with unanimous acceptance. 

"The terms of the article are so clear that no explanation 
of the provisions is necessary, but it may be well to state that 
in the phrase in paragraph 2 'military establishments or de- 
pots' the word 'depots' is intended to cover all collections of 
supplies for military use which have passed into the possession 
of the military authorities and are ready for delivery to the 
forces, 'distinctively military supplies' in the succeeding phrase is 
intended to cover those which by their nature show that they 
are certainly manufactured for military purposes. 

"If the code of rules of aerial warfare should eventually be 
annexed to a convention, paragraph 5 of the article would find a 
more appropriate place in the convention. 

"It will be noticed that for aerial bombardment the test 
adopted in article 25 of the Land Warfare Regulations, that of 
the town, &., being defended, is abandoned. The nature of the 
objective or the use to which it is being put now becomes the 
test." (Ibid.) 

There would be no question that a vessel of war would 
be and has been regarded as a military objective. 

Proposals before the conference for the reduction and 
limitation of armaments, 1932. — Numerous proposals 
were presented to the conference commonly referred to 
as the "Disarmament Conference." 

On February 5, 1932, the French delegation in the 
preamble to certain proposals stated: 

"The Government of the Republic, conscious of the gravity 
of the problem to be solved, is convinced that, in accordance 
with previous work of the League of Nations, the Conference 
should deal with this problem as a part of general policy. 

"This is all the more important since it meets at a time of 
economic and moral tension, at a time of general disturbance 
and uneasiness, when events emphasize the absolute necessity 
of a better organisation in a tormented world. 



DISARMAMENT CONFERENCE, 19 3 2 105 

"The Government of the Republic is anxious to honor the 
promise contained in its memorandum of July 15th, 1931, and 
to reply to the repeated appeals made by the League of Na- 
tions, notably in the resolution of the Assembly of 1927. It 
intends thus to fulfil a double duty. 

"It assumes that, on the basis of the draft Convention of 
1930, action will be taken with the least possible delay. 

"Further, it presents herewith proposals for placing civil 
aviation and bombing aircraft, and also certain material of 
land and naval forces, at the disposal of the League of Nations ; 
for the creation of a preventive and punitive international 
force ; for the political conditions upon which such measures 
depend ; and, lastly, for new rules providing for the protection 
of civil population." (League of Nations Publications, Conf. 
D. 56, 1931. IX. p. 1.) 

The French Government proposed that civil aviation 
and bombing aircraft be placed at the disposal of the 
League of Nations. In the detailed provisions of the 
French proposals, it was stated : 

"In addition to the preceding provisions, the Government of 
the Republic proposed the adoption of the following rules which 
can be adopted unconditionally : 

"(a) The use by aeroplanes and by land or naval artillery of 
projectiles which are specifically incendiary or which contain 
poison gases or bacteria is forbidden, whatever the objective." 
(Ibid., p. 3.) 

The German delegation also submitted certain pos- 
itive proposals on February 18, 1932 : 

"17. The maintenance of air forces of any kind is forbidden. 
The total air force material which has so -far been either in 
service or in reserve or on stock shall be destroyed, except 
those armaments which are to be incorporated in the quanti- 
ties allowed for land and naval forces. 

"18. The dropping of bombs or any other objects or materials 
serving military purposes from aircraft, as well as all prepara- 
tions to this effect shall be forbidden without any exception. 

"19. With a view to strictly enforcing the prohibition of any 
military aviation, the following shall, inter alia, be forbidden. 

"(a) Any instruction and training of any person in aviation 
having a military character or a military purpose." (Ibid., 
Conf. D. 79. IX. 1932, p. 3.) 
81178—36 8 



106 AIRCRAFT HOSPITAL SHIPS 

The Soviet delegation made the most comprehensive 
proposal to the effect that the real organization for peace 
and security would be through "the general complete 
and rapid abolition of all armed forces." 

The Italian delegation proposed the abolition of both 
aircraft carriers and bombing aircraft. 

Other states proposed the prohibition of military 
aviation and of the use of bombs from aircraft. 

Even the American delegation on February 18, 1932, 
indicated that the Government would "join in formulat- 
ing the most effective measures to protect civilian popu- 
lations against aerial bombing." 

The Japanese delegation made a similar proposition 
and would also prohibit aircraft-landing platforms and 
aircraft carriers. 

(d) Use of gas. — As military aircraft only are enti- 
tled to exercise belligerent rights, the rights thus exer- 
cised should be limited to those of lawful warfare. The 
use of poisonous gases and those that cause unnecessary 
suffering is in general prohibited. The use of smoke 
screens and of tear gas has not been included in the 
category of prohibited acts, but the use of bacteriological 
warfare has been prohibited. 

Hospital skips in World War. — There were many 
charges and counter-charges in regard to the misuse of 
hospital ships during the World War. The French 
Government even announced that its hospital ships 
would carry a certain number of German officers who 
had been made prisoners of war, and in retaliation the 
German Government announced that it would expose 
French officers in the war zone on land. In the Mediter- 
ranean the controversy was adjusted by an agreement 
in September 1917 that a Spanish officer should accom- 
pany the hospital ship in order to see that the Hague 
convention should be observed. The experience of the 
World War showed that in spite of revisions, the 
Geneva convention should have still further revision to 



CASE OF THE "OREL" 107 

meet new and changing conditions of warfare. Such 
questions arise as: What should be the degree of sick- 
ness entitling a military man to travel upon a hospital 
ship; how far may hospital ships evacuate crowded 
hospitals on land ; might a transport ship on an outward 
voyage to the seat of war act as a hospital ship carrying 
sick and wounded on its return? 

In general the tendency during the World War was 
to interpret convention X strictly and to confine the 
action of the ships to "assisting the wounded, sick, and 
shipwrecked", and not including those wounded or sick 
on land by evacuating land hospitals. 

The "Orel", lW^.—The Orel (Aryol), a steamer be- 
longing to the Russian volunteer fleet, was chartered at 
the outbreak of the Russo-Japanese War as a hospital 
ship to serve the Russian Red Cross. Japan was noti- 
fied, and assented to this action. 

En route to the Far East, the Orel on one occasion 
conveyed instructions from the commander in chief to 
one of the ships of the squadron. She was also in- 
structed to purchase insulated wire in Cape Town. 
After arrival in Far Eastern waters, she took on board 
the uninjured captain and three members of the crew of 
ship which had been destroyed by a vessel of war of the 
Russian fleet. In approaching the Straits of Tsushima, 
the Orel was in the position of a fleet reconnaissance 
vessel, and was stopped and taken to the Japanese prize 
court. 

The conclusion of the Court is as follows : 

"A hospital ship is only exempt from capture if she fulfils 
certain conditions and is engaged solely in the humane work 
of aiding the sick and wounded. That she is liable to capture, 
should she be used by the enemy for military purposes, is 
admitted by International Law, and is clearly laid down by the 
stipulations of The Hague Convention No. 3 of July 29th, 1899, 
for the adaptation to maritime warfare of the principles of the 
Geneva Convention of August 22nd, 1864. Although the "Orel" 
had been lawfully equipped and due notification concerning her 



108 AIRCRAFT HOSPITAL SHIPS 

had been given by the Russian Government to the Japanese 
Government, yet her action in communicating the orders of the 
Commander-in-Chief of the Russian Second Pacific Squadron 
to other vessels during her eastward voyage with the squadron, 
and her attempt to carry persons in good health, i. e., the 
master and three other members of the crew of a British 
steamship captured by the Russian fleet, to Vladivostock, which 
is a naval port in enemy territory, were evidently acts in aid 
cf the military operations of the enemy. Further, when the 
facts that she was instructed by the Russian squadron to pur- 
chase munitions of war, and that she occupied the position 
usually assigned to a ship engaged in reconnaissance, are taken 
in consideration, it is reasonable to assume that she was con- 
stantly employed for military purposes on behalf of the Russian 
squadron. She is, therefore, not entitled to the exemptions laid 
down in The Hague Convention for the adaptation to maritime 
warfare of the principles of the Geneva Convention, and may 
be condemned according to International Law." (2 Hurst and 
Bray, Russia and Japanese Prize Cases, p. 354.) 

The "Ophelia", 191If. — The Ophelia was a German 
auxiliary military hospital ship, met in the North Sea 
October 18, 1914, and taken on suspicion to a British 
port where she was detained as prize. The Ophelia was 
condemned as prize on May 21, 1915, on the ground that 
"she was adapted and used as a signaling ship for mili- 
tary purposes." The case was appealed to the Judicial 
Committee of the Privy Council where a decision was 
rendered May 8, 1916. 

Particular reference was made to articles 1 and 8 of 
Hague Convention 10 of 1907. 

"Art. 1. Military hospital ships, that is to say, ships con- 
structed or adapted by States wholly and solely with a view 
to aiding the wounded, sick, and shipwrecked, the names of 
which have been communicated to the belligerent Powers, shall 
be respected and cannot be captured. 

"Art. 8. The protection to which hospital ships are entitled 
ceases if they are used to commit acts harmful to the enemy. 
The presence of wireless telegraphy apparatus on board is not 
;i sufficient reason for withdrawing protection." 

It was stated in this case that the only question in the 
nature of a point of lavs 7 was as to the presence of a 



CASE OF THE "OPHELIA" 109 

wireless telegraphy apparatus. The formalities con- 
stituting the Ophelia a hospital ship had been met. 

Question arose as to whether the Ophelia was "wholly 
and solely" fitted as a hospital ship. 

The opinion of Commander Newman w T as stated : 

"In the opinion of Commander Newman, who had special 
experience in the fitting of hospital ships, the Ophelia was not 
only unsuitable for use as a hospital ship, but was undoubtedly 
fitted and intended for signalling purposes. He came to that 
conclusion without knowing that the ship was suspected of acting 
as a signalling ship, and when he had merely been instructed to 
report on her suitability as a hospital ship." ( [1916] 2 A. C. 
206.) 

The opinion in the judgment remarked that — 

"It is obvious that there could hardly be a greater or more 
dangerous abuse of the privileges of a hospital ship than the 
communicating to the naval authorities of her nation informa- 
tion which she would be constantly in a position to obtain by 
virtue of her immunity. Her signalling apparatus ought to be 
confined strictly to what would be necessary for receiving in- 
struction as to her duties and for calling for assistance in the 
performance of them and such like legitimate purposes. That 
the risk of such abuse was present to the minds of the framers 
of the Hague Convention is shown by the mention of wireless 
telegraphy. Instead of the signalling apparatus and equipment 
of the Ophelia being confined within the narrow limits necessary 
for a bona fide hospital ship, it was obviously very largely in ex- 
cess of them. * * * It is, however, the enormous number of 
Very's signal lights which were on board which seemed to the 
President, and seems also to the Board, practically conclusive 
that the vessel was specially equipped for signalling. These 
lights are fired from a special kind of pistol, of which there 
were two on board. Of these Very's lights she had on board 
no less than 600 green, 480 red, and 140 white lights, obviously 
a most abnormal number. It is said by Commander Newman 
that a British vessel of the same class would have about 12 of 
each. At the trial it was discovered for the first time that a 
record of the number of these lights which had been used, had 
been kept, but that it was destroyed by the paymaster by tho 
order of Captain Pfeiffer after the capture, and on the evening 
of the day when they had been informed that the vessel was to 
1h> put in the Prize Court. * * * 



110 AIRCRAFT HOSPITAL SHIPS 

"On these facts the learned President found that the Ophelia 
was not adapted or equipped solely as a hospital ship, and with 
that finding their Lordships agree. This finding would in itself 
justify the condemnation, but the matter ought not to be left to 
rest there, and the use actually made of the vessel must now 
be considered." (Ibid.) 

The testimony as to the use of the Ophelia for hos- 
pital work is conflicting, and her movements were re- 
garded as suspicious, and apparently some ship's papers 
were destroyed. The appeal supported the opinion of 
the lower court that — 

"the Ophelia was not constructed, adapted or used for the 
special and sole purpose of affording aid and relief to the 
wounded, sick, and shipwrecked, and that she was adapted and 
used as a signalling ship for military purposes." (Ibid.) 

Controversy on use of hospital ships, 1917. — On Janu- 
ary 28, 1917, the German foreign office requested the 
American Embassy at Berlin to transmit to the British 
Government a memorandum respecting the misuse of 
hospital ships. In this memorandum the first para- 
graph states: 

"For some time the enemy Governments, especially the British 
Government, have used their hospital ships not only for the pur- 
pose of rendering assistance to the wounded, sick, and ship- 
wrecked, but also for military purposes, and have thereby vio- 
lated the Hague Convention regarding the application of the 
Geneva Convention to maritime warfare." (Parliamentary 
Papers, Miscellaneous, No. 16 [1917] Cd. 8692, p. 3.) 

There follow specifications of accusations which the 
German Government claim have most seriously violated 
the Hague convention regarding the application of the 
Geneva convention to maritime warfare, and then the 
memorandum concludes : 

"In view of the breach of treaty committed by their enemies 
the German Government would be entitled to free themselves 
altogether from the obligations contained in the Convention; 
for reasons of humanity, however, they desire still to refrain 
from doing so. On the other hand, they can no longer permit 
the British Government to despatch their troop and munition 



HOSPITAL SHIPS 111 

transports to the principal theatre of war under the hypocritical 
cloak of the Red Cross. They therefore declare that from this 
moment on they will no longer suffer any enemy hospital ship 
in the maritime zone which is situated between the lines Flam- 
borough Head to Terschelling on the one hand and Ushant to 
Lands End on the other. Should enemy hospital ships be en- 
countered in this maritime zone, after an appropriate lapse of 
time, they will be considered as belligerent and will be attacked 
without further consideration. The German Government be- 
lieve themselves all the more justified in adopting these measures 
as the route from Western and Southern France to the West 
of England still remains open for enemy hospital ships, and 
the transport of English wounded to their homes can conse- 
quently be effected now as heretofore without hinderance." 
(Ibid., p. 4.) 

To the charges made by the German Government, the 
British Government replied that the German vessels of 
war had neglected the remedy which was legally avail- 
able to them in case of suspicion. This was to visit and 
inspect the hospital ship in order to determine whether 
the suspicion was well founded. After a general denial 
of the German charges, each is specifically discussed and 
reasons given for the statement that British hospital 
ships had conformed to the requirements of the Hague 
convention. 

International Red Cross, 1917. — The German action 
in regard to hospital ships led the International Eed 
Cross Committee to address a protest to the German 
Government which was later given to the press. 

"Geneve, 14 avril 1917. 

"Le 29 Janvier 1917, le gouvernement allemand a rendu une 
ordonnance par laquelle, a partir de ce jour, tous les navires- 
hdpitaux portant les marques de la Croix-Rouge seraient con- 
siders comme vaisseaux de guerre, attaques et coules comme 
tels, dans une zone determinee de la Manche et de la mer du 
Nord. 

"Le gouvernement allemand donne comme motif de cette 
mesure rigoureuse le fait que le gouvernement anglais se ser- 
virait habituellement de ses navires-hopitaux pour le transport 
de troupes et de munitions, protegees ainsi par le drapeau de la 
Croix-Rouge. Le gouvernement allemand puise dans cette 



112 AIRCRAFT HOSPITAL SHIPS 

accusation le droit de se delier vis-a-vis des navires-hdpitaux 
du respect que les conventions cle Geneve et de la Haye imposent 
a lour egard. 

"Le 20 mars 1917, un sous-inarin aUemand torpillait VAs- 
turias, un vaisseau dont l'apparence ne laissait aucun tloute 
sur sa destination, et qui la veille avait depose un grand 
nombre de blesses et de mala des. Preeedemment deja, un autre 
grand vaisseau-hopital, le Britannic, avait eu le raeme sort. 

"Le Comite international, qui a le droit et le devoir de faire 
respecter les principes de la Croix-Rouge et de la convention de 
Geneve, en signalant les atteintes que pourraient y etre portees, 
attire la tres serieuse attention du gouvernement imperial sur 
la responsabilite qu'il assumerait vis-*i-vis du monde civilise en 
persistant dans une resolution en contradiction avec les con- 
ventions humanitaires qu-il s'est solennellement engage a re- 
specter. 

"En torpillant des navires-hopitaux, on s'attaque non a des 
combattants, mais ft des etres sans defense a des blesses mutiles 
ou brises par la mitraille, a des femmes que se devouent a une 
oeuvre de secours et de charite, k des homines qui out pour armes 
non celles qui servent a oter la vie & l'adversaire, mais celles 
au contraire qui peuvent la lui conserver et apporter quelque 
soulagement a ses souffrances. 

"Tout navire-hopital muni des signes exterieurs prevus par les 
conventions internationales et dont mise en service a ete" 
regulierement notifiee aux belligerants, est au benefice d'une 
presomption legale et doit etre respecte par les belligerants. 

"Ceux-ci, s'ils ont de justes motifs de craindre qu'un navire- 
hopital soit partiellement affecte a des buts militaires, ont sur 
lui, en vertu de l'article 4 de la convention de la Haye, le droit 
de controle et de visite : ils peuvent lui imposer une direction 
determinee et mettre a bord un Commissaire, meme le detenir, 
si la gravite des circonstances l'exige. Ils n'ont en aucun cas 
le droit de le couler et d'exposer a la mort tout le personnel 
hospitalier et les blesses transportes par ce navire. 

"Li'Asturias parait avoir ete torpille sans qu'on se soit pr6- 
occupe ni de son caractere, ni de sa destination. 

"Meme si Ton admettait Texactitude des faits sur lesquels 
I'Allemagne s'appuie pour justifier son ordonnance, le Comite 
international estime que rien ne saurait excuser le torpillago 
d'un navire-hopital. 

"C'est pourquoi, considerant l'ordonnance du 29 Janvier comme 
Tjtant en disaccord avec les conventions internationales, il ex- 



GENEVA CONVENTION 113 

prime le voeu que cette ordonnance ne soit plus appliquee a 
l*avenir. 

"Au nom du Comite international de la Croix-Rouge: 

"Le President, 

"G. Adob. 
"Les vice-Presidents, 
"Prof. Ad. d'EspiNE, 
"Edouakd Naville." 

(Revue de Droit International Puolic, vol. 24 (1917), no. 6, 
p. 471.) 

(e) Hospital ships. — Hospital ships are not to be used 
"for any military purpose." As long as the hospital 
ships conform to the provisions of the Geneva conven- 
tion they are not to be captured and are granted in 
neutral ports exemption from the usual restrictions ap- 
plying to vessels of war. These exemptions are granted 
on the ground of the humanitarian occupation to which 
the hospital ship is devoted and the exemption ceases 
when other use is made of the vessel. At such time each 
state must, considering the circumstances, determine its 
attitude toward and treatment of the ship. The neutral 
state must fulfil its obligations and the belligerent state 
ma}^ exercise its rights. 

As the hospital ship is supposed to be an unarmed 
vessel with a nonbelligerent personnel and incapacitated 
or shipwrecked persons on board and as by the Geneva 
convention belligerents have the right to "control and 
visit" hospital ships or even to detain them, there would 
seem to be no ground for firing upon such a ship unless 
to bring it to if it was attempting to escape. 

solution 

(a) 1. The private neutral seaplane alighting within 
the blockade lines should be seized. The proof of inno- 
cence rests upon the seaplane. 

2. The private neutral seaplane alighting 50 miles 
outside the blockade lines is not liable to seizure unless 
on grounds discovered by visit and search. 



114 AIRCRAFT HOSPITAL SHIPS 

(b) The military aircraft and crew should be in- 
terned by state B. 

(c) The armed private aircraft of state X should not 
be supplied with fuel in a port of E. 

(d) The use of tear gas by one belligerent against 
another is not prohibited, therefore the resort to the 
use of bacteriological bombs in retaliation is unlawful. 

(e). 1. Neutral state C, while not under obligation 
to pass upon the character of an act of a hospital ship 
of a belligerent, may treat such a ship as a vessel of 
war if convinced that the ship has forfeited its im- 
munities. 

2. The capture of the Safety by the fleet of Y is law- 
ful, but care should be taken to restrict the use of force 
to the minimum. 



APPENDIX 1 

CONVENTION ON MARITIME NEUTRALITY 

By the President of the United States of America 

a proclamation 

Whereas a Convention on Maritime Neutrality was 
adopted in the English, Spanish, Portuguese and French 
languages by the Plenipotentiaries of the United States 
of America (with a reservation in respect of Section 3 
of Article 12), Peru, Uruguay, Panama, Ecuador, Mex- 
ico, El Salvador, Guatemala, Nicaragua, Bolivia, Vene- 
zuela, Colombia, Honduras, Costa Rica, Chile (with a 
reservation), Brazil, Argentina, Paraguay, Haiti, Do- 
minican Republic and Cuba (with a reservation), at the 
Sixth International Conference of American States 
which assembled at Habana, Cuba, from January 16 to> 
February 20, 1928, the English text of which convention, 
as contained in the final act signed by the Plenipotenti- 
aries of the said states at the closing session of the said 
conference, is word for word as follows : 

Convention 

on maritime neutrality 

The Governments of the Republics represented at the 
Sixth International Conference of American States, held 
in the city of Habana, Republic of Cuba, in the vear 
1928; ^ 

Desiring that, in case war breaks out between two or 
more states the other states may, in the service of peace, 
offer their good offices or mediation to bring the conflict 
to an end, without such an action being considered as 
an unfriendly act; 

Convinced that, in case this aim cannot be attained, 
neutral states have equal interest in having their rights 
respected by the belligerents; 

115 



116 APPENDIX I 

Considering that neutrality is the juridical situation 
of states which do not take part in the hostilities, and 
that it creates rights and imposes obligations of impar- 
tiality, which should be regulated; 

Recognizing that international solidarity requires that 
the liberty of commerce should be always respected, 
avoiding as far as possible unnecessary burdens for the 
neutrals; 

It being convenient, that as long as this object is not 
reached, to reduce those burdens as much as possible; 
and 

In the hope that it will be possible to regulate the 
matter so that all interests concerned may have every 
desired guaranty; 

Have resolved to formulate a convention to that effect 
and have appointed the following plenipotentiaries : 

[Here follow the names of the plenipotentiaries.] 

Section I. — Freedom of commerce in time of war 

Article 1. — The following rules shall govern com- 
merce in time of war: 

1. Warships of the belligerents have the right to stop 
and visit on the high seas and in territorial waters that 
are not neutral any merchant ship with the object of 
ascertaining its character and nationality and of verify- 
ing whether it conveys cargo prohibited by international 
law or has committed any violation of blockade. If 
the merchant ship does not heed the signal to stop, it 
may be pursued by the warship and stopped by force; 
outside of such a case the ship cannot be attacked unless, 
after being hailed, it fails to observe the instructions 
given it. 

The ship shall not be rendered incapable of naviga- 
tion before the crew and passengers have been placed in 
safety. 

2. Belligerent submarines are subject to the foregoing 
rules. If the submarine cannot capture the ship while 
observing these rules, it shall not have the right to con- 
tinue to attack or to destroy the ship. 

Article 2. — Both the detention of the vessel and its 
crew for violation of neutrality shall be made in accord- 
ance with the procedure which best suits the state 
effecting it and at the expense of the transgressing ship. 



APPENDIX I 117 

Said state, except in the case of grave fault on its part, 
is not responsible for damages which the vessel may 
suffer. 

Section II. — Duties and rights vf belligerents 

Article 3. — Belligerent states are obligated to refrain 
from performing acts of war in neutral waters or other 
acts which may constitute on the part of the state that 
tolerates them, a violation of neutrality. 

Article 4. — Under the terms of the preceding article, 
a belligerent state is forbidden: 

a) To make use of neutral waters as a base of naval 
operations against the enemy, or to renew or augment 
military supplies or the armament of its ships, or to 
complete the equipment of the latter ; 

b) To install in neutral waters radio-telegraph sta- 
tions or any other apparatus which may serve as a 
means of communication with its military forces, or to 
make use of installations of this kind it may have es- 
tablished before the war and which may not have been 
opened to the public. 

Article 5. — Belligerent warships are forbidden to re- 
main in the ports or waters of a neutral state more than 
twenty-four hours. This provision will be communi- 
cated to the ship as soon as it arrives in port or in the 
territorial waters, and if already there at the time of 
the declaration of war, as soon as the neutral state 
becomes aware of this declaration. 

Vessels used exclusively for scientific, religious, or 
philanthropic purposes are exempted from the forego- 
ing provisions. 

A ship may extend its stay in port more than twenty- 
four hours in case of damage or bad conditions at sea, 
but must depart as soon as the cause of the delay has 
ceased. 

When, according to the domestic law of the neutral 
state, the ship may not receive fuel until twenty-four 
hours after its arrival in port, the period of its stay 
may be extended an equal length of time. 

Article 6. — The ship which does not conform to the 
foregoing rules may be interned by order of the neutral 
government. 

A ship shall be considered as interned from the mo- 
ment it receives notice to that effect from the local neu- 
tral authority, even though a petition for reconsidera- 



118 APPENDIX I 

lion of the order has been interposed by the transgress- 
ing vessel, which shall remain under custody from the 
moment it receives the order. 

Article 7. — In the absence of a special provision of 
the local legislation, the maximum number of ships of 
war of a belligerent which may be in a neutral port 
at the same time shall be three. 

Article 8. — A ship of war may not depart from a 
neutral port within less than twenty-four hours after 
the departure of an enemy warship. The one entering 
first shall depart first, unless it is in such condition as 
to warrant extending its stay. In any case the ship 
which arrived later has the right to notify the other 
through the competent local authority that within 
twenty-four hours it will leave the port, the one first 
entering, however, having the right to depart within 
that time. If it leaves, the notifying ship must observe 
the interval which is above stipulated. 

Article 9. — Damaged belligerent ships shall not be 
permitted to make repairs in neutral ports beyond those 
that are essential to the continuance of the voyage and 
which in no degree constitute an increase in its military 
strength. 

Damages which are found to have been produced by 
the enemy's fire shall in no case be repaired. 

The neutral state shall ascertain the nature of the 
repairs to be made and will see that they are made as 
rapidly as possible. 

Article 10. — Belligerent warships may supply them- 
selves with fuel and stores in neutral ports, under the 
conditions especially established by the local authority 
and in case there are no special provisions to that effect, 
they may supply themselves in the manner prescribed 
for provisioning in time of peace. 

Article 11. — Warships which obtain fuel in a neutral 
port cannot renew their supply in the same state until 
a period of three months has elapsed. 

Article 12. — Where the sojourn, supplying, and pro- 
visioning of belligerent ships in the ports and jurisdic- 
tional waters of neutrals are concerned, the provisions 
relative to ships of war shall apply equally : 

1. To ordinary auxiliary ships; 

2. To merchant ships transformed into warships, in 
accordance with Convention VII of The Hague of 1907. 



«^» 



APPENDIX I 119 

The neutral vessel shall be seized and in general sub- 
jected to the same treatment as enemy merchantmen : 

a) When taking a direct part in the hostilities ; 

b) When at the orders or under the direction of 
an agent placed on board by an enemy government ; 

c) When entirely freight-loaded by an enemy 
government ; 

d) When actually and exclusively destined for 
transporting enemy troops or for the transmission 
of information on behalf of the enemy. 

In the cases dealt with in this article, merchandise 
belonging to the owner of the vessel or ship shall also 
be liable to seizure. 

3. To armed merchantmen. 1 

Article 13. — Auxiliary ships of belligerents, con- 
verted anew into merchantmen, shall be admitted as 
such in neutral ports subject to the following condi- 
tions : 

1. That the transformed vessel has not violated the 
neutrality of the country where it arrives ; 

2. That the transformation has been made in the 
ports or jurisdictional waters of the country to which 
the vessel belongs, or in the ports of its allies; 

3. That the transformation be genuine, namely, that 
the vessel show neither in its crew nor in its equipment 
that it can serve the armed fleet of its country as an 
auxiliary, as it did before; 

4. That the government of the country to which the 
ship belongs communicate to the states the names of 
auxiliary craft which have lost such character in order 
to recover that of merchantmen ; and 

5. That the same government obligate itself that said 
ships shall not again be used as auxiliaries to the war 
fleet. 

Article 14. — The airships of belligerents shall not 
fly above the territory or the territorial waters of neu- 
trals if it is not in conformity with the regulations of 
the latter. 

Section III. — Rights and duties of neutrals 

Article 15. — Of the acts of assistance coming from 
the neutral states, and the acts of commerce on the part 
of individuals, only the first are contrary to neutrality. 

1 This sec. 3 was not accepted by the United States of America. 



120 APPENDIX I 

Article 16. — The neutral state is forbidden : 

a) To deliver to the belligerent, directly or indi- 
rectly, or for any reason whatever, ships of war, muni- 
tions or any other war material; 

b) To grant it loans, or to open credits for it during 
the duration of war. 

Credits that a neutral state may give to facilitate 
the sale or exportation of its food products and raw 
materials are not included in this prohibition. 

Article IT. — Prizes cannot be taken to a neutral port 
except in case of unseaworthiness, stress of weather, or 
want of fuel or provisions. When the cause has disap- 
peared, the prizes must leave immediately ; if none of 
the indicated conditions exist, the state shall suggest 
to them that they depart, and if not obeyed shall have 
recourse to the means at its disposal to disarm them 
with their officers and ciew, or to intern the prize crew 
placed on board by the captor. 

Article 18. — Outside of the cases provided for in 
Article 17, the neutral state must release the prizes 
which may have been brought into its territorial waters. 

Article 19. — When a ship transporting merchandise 
is to be interned in a neutral state, cargo intended for 
said country shall be unloaded and that destined for 
others shall be transhipped. 

Article 20. — The merchantman supplied with fuel or 
other stores in a neutral state which repeatedly delivers 
the whole or part of its supplies to a belligerent ves- 
sel, shall not again receive stores and fuel in the same 
state. 

Article 21. — Should it be found that a merchantman 
flying a belligerent flag, by its preparations or other 
circumstances, can supply to warships of a state the 
stores which they need, the local authority may refuse 
it supplies or demand of the agent of the company a 
guaranty that the said ship will not aid or assist any 
belligerent vessel. 

Article 22. — Neutral states are not obligated to pre- 
vent the export or transit at the expense of any one 
of the belligerents of arms, munitions and in general 
of anything which may be useful to their military 
forces. 

Transit shall be permitted when, in the event of a 
war between two American nations, one of the bellig- 



APPENDIX I 121 

erents is a mediterranean country, having no other 
means of supplying- itself, provided the vital interests 
of the country through which transit is requested do 
not suffer by the granting thereof. 

Article 23. — Neutral states shall not oppose the vol- 
untary departure of nationals of belligerent states even 
though they leave simultaneously in great numbers; but 
they may oppose the voluntary departure of their own 
nationals going to enlist in the armed forces. 

Article 24. — The use by the belligerents of the means 
of communication of neutral states or which cross or 
touch their territory is subject to the measures dictated 
by the local authority. 

Article 25. — If as the result of naval operations be- 
yond the territorial waters of neutral states there should 
be dead or wounded on board belligerent vessels, said 
states may send hospital ships under the vigilance of 
the neutral government to the scene of the disaster. 
These ships shall enjoy complete immunity during the 
discharge of their mission. 

Article 26. — Neutral states are bound to exert all the 
vigilance within their power in order to prevent in their 
ports or territorial waters any violation of the foregoing 
provisions. 

Section IV. — Fulfilment and observance of the laws of 

neutrality. 

Article 27. — A belligerent shall indemnify the dam- 
age caused by its violation of the foregoing provisions. 
It shall likewise be responsible for the acts of persons 
who may belong to its armed forces. 

Article .28. — The present convention does not affect 
obligations previously undertaken by the contracting 
parties through international agreements. 

Article 29. — After being signed, the present conven- 
tion shall be submitted to the ratification of the signa- 
tory states. The Government of Cuba is charged with 
transmitting authentic certified copies to the govern- 
ments for the aforementioned purpose of ratification. 
The instrument of ratification shall be deposited in the 
archives of the Pan American Union in Washington, 
the Union to notify the signatory governments of said 
deposit. Such notifications shall be considered as an 

81178—36 9 



122 APPENDIX I 

exchange of ratifications. This convention shall remain 
open to the adherence of nonsignatory states. 

In witness whereof, the aforenamed plenipotentiaries 
sign the present convention in Spanish, English, 
French, and Portuguese, in the city of Habana, the 20th 
day of February, 1928. 

Ratification deposited, March 22, 1932. 

Proclaimed by President of the United States, May 
26, 1932. 



APPENDIX II 

CONVENTION CONCERNING THE RIGHTS AND 
DUTIES OF STATES IN THE EVENT OF CIVIL 
STRIFE 

The Governments of the Republics represented at the 
Sixth International Conference of American States, 
held in the city of Habana, Republic of Cuba, in the 
year 1928, desirous of reaching an agreement as to the 
duties and rights of states in the event of civil strife, 
have appointed the following plenipotentiaries: 
[Here follow the names of the plenipotentiaries.] 
Who, after exchanging their respective full powers, 
which were found to be in good and due form, have 
agreed upon the following: 

Article 1 

The contracting states bind themselves to observe the 
following rules with regard to civil strife in another one 
of them : 

1. To use all means at their disposal to prevent the in- 
habitants of their territory, nationals or aliens, from 
participating in, gathering elements, crossing the bound- 
ary or sailing from their territory for the purpose of 
starting or promoting civil strife. 

2. To disarm and intern every rebel force crossing 
their boundaries, the expenses of internment to be borne 
by the state where public order may have been disturbed. 
The arms found in the hands of the rebels may be 
seized and withdrawn by the government of the coun- 
try granting asylum, to be returned, once the struggle 
has ended, to the state in civil strife. 

3. To forbid the traffic in arms and war material, ex- 
cept when intended for the government, while the bel- 
ligerency of the rebels has not been recognized, in which 
latter case the rules of neutrality shall be applied. 

4. To prevent that within their jurisdiction there be 
-equipped, armed or adapted for warlike purposes any 
vessel intended to operate in favor of the rebellion. 

123 



124 APPENDIX II 

Article 2 

The declaration of piracy against vessels which have 
risen in arms, emanating from a government, is not 
binding upon the other states. 

The state that may be injured by depredations origi- 
nating from insurgent vessels is entitled to adopt the 
following punitive measures against them: Should the 
authors of the damages be warships, it may capture and 
return them to the government of the state to which 
they belong, for their trial; should the damage origi- 
nate with merchantmen, the injured state may capture 
and subject them to the appropriate penal laws. 

The insurgent vessel, whether a warship or a mer- 
chantman, which flies the flag of a foreign country to 
shield its actions, may also be captured and tried by the 
state of said flag. 

Article 3 

The insurgent vessel, whether a warship or a mer- 
chantman, equipped by the rebels, which arrives at a 
foreign country or seeks refuge therein, shall be deliv- 
ered by the government of the latter to the constituted 
government of the state in civil strife, and the members 
of the crew shall be considered as political refugees. 

Article 4 

The present convention does not affect obligations 
previously undertaken by the contracting parties 
through international agreements. 

Article 5 

After being signed, the present convention shall be 
submitted to the ratification of the signatory states. The 
Government of Cuba is charged with transmitting au- 
thentic certified copies to the governments for the afore- 
mentioned purpose of ratification. The instrument of 
ratification shall be deposited in the archives of the Pan 
American Union in Washington, the Union to notify 
the signatory governments of said deposit. Such notifi- 
cation shall be considered as an exchange of ratifica- 
tions. This convention shall remain open to the ad- 
herence of non-signatory states. 



APPENDIX II 125 

In witness whereof the aforenamed plenipotentiaries 
sign the present convention in Spanish, English, French, 
and Portuguese, in the* city of Habana, the 20th day of 
February, 1928. 

[Ratification of the United States deposited with Pan 
American Union May 21, 1930; proclaimed by the Presi- 
dent of the United States. June 6 1930/1 



INDEX 

Page 
Aaland Islands 4 

Aircraft : 

Armed private 95 

Belligerent 90 

Bombardment from 102 

Bombing, proposed limitation of 105 

Internment of 89, 93, 96 

In distress 89 

Military 90, 93, 95 

Neutral i 93 

On board warship 96 

Proposals- of Limitation of Armament Conference, 

1932, as to 101 

Proposed control of, by League of Nations 105 

Use of 86 

Aircraft personnel, internment of 96 

Argentine, supplying vessels of war from ports of 37 

Armed merchant vessels 28 

British instructions as to 32 

Asylum : 

In case of insurgency 67 

In neutral ports 42,49 

United States-Peru treaty as to 43 

Auxiliary vessels 21, 25, 37, 39, 52, 53 

Conversion of 33 

Base of naval operations 7,11.17,38,44 

Belligerent rights 5, 10 

Blockade : 

Aerial 87, 88, 94 

Breach of, by aircraft 94 

Effective 85, 89. 94 

Paper 88 

Submarine 88 

Bluefields incident 58 

Bombardment, aerial 102, 103, 105, 106 

Boundary, pursuit across international 60 

127 



128 INDEX 

Brazil: Page 

Belligerent warships in ports of 8,10 

Repairs in ports of 8,49 

Cargoes : 

Belligerent, clearance of IT 

Neutral, detention of 14 

Central American court of justice 57 

Central American states, general treaty of peace of 57 

Charter, liability under 78 

Chile, attitude of, toward reconversion ' 32 

China, attitude of, toward British action in Nanking 70 

vil strife : 

Action during 55, 62 

Convention concerning rights and duties of states in 

the event of, Habana, 1928 62,63,69,71,80 

(Text) 123 

Clay, Secretary of State 30 

Clearance, from neutral ports 17, 28 

Closed ports 47, 53 

Closure of ports 6 

Coaling : 

From neutral ports 37, 39, A~> 

In time of peace 75 

Code of Private International Law, 1928 78 

Commerce, between neutral states 17.20 

Commission of Inquiry 3 

Commission of Jurists, 1923, as to aircraft 87,90,93,95,103 

Convention concerning rights and duties of states in the 

event of civil strife. (See Civil strife.) 
Convention on Maritime Neutrality. (See Maritime neu- 
trality.) 

Conversion 21, 33 

In neutral ports 27 

On high seas 24 

(See also Reconversion.) 

Cuba 65 

Protection of alien property in 68 

Treaty of, with United States 69 

Declaration of London, 1909 IS 

Declaration of Paris, 1856 85,88 

Denmark : 

As to repairs in neutral ports 7, 10 

As to use of belligerent flags 77 

Destination 17, 41 

Detention of neutral cargoes 14 

Disturbed conditions 56 et seq. 

Ecuador, neutrality proclamation of 36 



INDEX 129 

Page 
Emerald, The 70 

Enemy forces, internment of 91 

Ethiopia, United States recognizes state of war between, 

and Italy 15 

Export of arms and munitions 14, 20 

Farn, The (KD-3) 39 

Flag: 

Display of, in neutral waters 78 

False 72, 73, 78, 81 

Foreign 71, 77 

Law of the - 70 

National, use of flag similar to 73 

Protection of '. 73 

Use of 29, 73, 78 

Fleet auxiliary. (See Auxiliary vessels.) 

Force majeure 02 

Fueling 6, 37, 38 

{See also Coaling.) 

Gas warfare, prohibition of 00 

Gases, use of 08, 00, 100 

Geneva Convention, 1864 107,113 

Geneva protocol, 1925 100 

Great Britain : 

Defines "warship" 2.1 

Instructions, as to armed merchantmen 32 

Protection of citizens by 70 

Habana Convention concerning the rights and duties of 

States in the event of civil strife. (See Civil strife.) 
Habana Convention on Maritime Neutrality. (See Mari- 
time neutrality.) 
Hague Convention : 

I. 1800 3 

III. 1809 107 

VII, 1907 21,30 

N. 1907 108,110 

XIII. 1907 5, 12, 33, 40, 45, HO 

Honduras 57 

Detention of American vessel by 72 

Hospital ships 53, 83, et seq. 

Hague Convention X as to 108 

In World War 106 

Misuse of 110 

Red Cross as to exemption of 111 

Hughes. Secretary of State, as to gas warfare 99 

Hull. Secretary of State, as to nonintervention 03 



130 INDEX 

Hyde. Prof. C. C. Page 

As to repairs in neutral ports 9 

As to unarmed belligerent public vessels 35 

Hydroplanes. (See Seaplanes.) 

Innocent passage 12 

Institute of International Law : 

As to conversion 25 

As to asylum 42 

Insurgency 62 

Insurgents 66 

Liability of 71 

Seizure of foreign merchantmen by 82 

Vessels of 66,71,72.81 

Insurrection 80 

United States attitude toward. 1891 66 

Internment 39 

British memorandum as to 90 

Decree of Argentine on 37 

Xicaraguan regulation as to 37 

Of aircraft 89,93, 96 

Of belligerent warships 10 

Of seaplanes 94) 

Repairs on vessels during 31 

Rules for 91 

Interposition 64 

Intervention 62 et seq. 

Italy. United States recognizes state of war between 

Ethiopia and 15 

Juncal, the 30 

Jurisdiction, over private vessels in foreign ports 74 

KD-3. {See Farn, The.) 

KronpHnz WUhePm 31 

Lansing. Secretary of State, as to conversion 29 

League of Nations, proposed control of aircraft by 105 

Limitation of Armament Conference: 

192L-22 99 

1932 104 

Magdalena Bay, coaling in 76 

Maritime jurisdiction 9. 74 

Maritime neutrality. Convention on, Habana. 1928 7. 

19. 33, 34. 40 

(Text) 115 

Merchant vessels : 

Arming of 22 

Jurisdiction over foreign 74 

Stiffening the decks of 22 



INDEX 131 

Mexico : Page 

Disturbed conditions in 60 

Be facto recognition of 60 

Reciprocal arrangement with United States as to coal- 
ing TO 

Montevideo Conference, 1933 62, 64 

Nanking incident TO 

Naval officers, powers of, in foreign ports 80 

Netherlands : 

Admission of warships to ports of 50 

Internment : 

Of belligerent aircraft 80 

Of British seaplane 90 

Neutral jurisdiction : 

Belligerent aircraft in 89,92 

Military aircraft in 95 

Neutral persons, sale of war material by 13 

Neutral ports 36, 38 

Asylum in 42, 49 

Conversion in 21, 27 

Entrance of converted ships to 34 

Repairs in 4,7,8,29,31,43 

Refuge in 42,49,50 

Supplying of warships at sea from 41, 45 

Use of 30 

Vessels and 1-54 

Neutral rights 5, 10 

Habana Convention. 1928 41 

Neutral territory : 

Crossing of 91 

Supplying warships at sea from 41, 44 

Neutral waters : 

Passage through 12 

Refuge in 50 

Neutrality, maritime. {See Maritime neutrality.) 

Nicaragua : 

Internment of merchant vessels by 37 

United States attitude toward. 1909 r^ 

Norway : 

As to repairs in neutral ports 7 

Belligerent submarines in waters of 11 

Regulations as to use of flag in waters of 78 

Rules as to entrance of warships 47 

Olinde Rodrigues, The 84.88 

Ophelia, The 108 



132 INDEX 

Page 

Orel, The 107 

Oxford Manual of Naval War, 1913 26 

Panama, Treaty of, with United States as to neutral obli- 
gations 51 

Panama Canal Zone, belligerent warships in 52 

Perlas, The 72 

Phillips, William, on intervention 65 

Piracy 66, 71 

Pirates 68 

Pisa, The 44 

Political refugees, asylum to 68 

Prims Eitel Friedrich 29, 31 

Privateers v 68 

Projectiles, use of 86, 105 

Property : 

Alien 68 

Public, on merchant vessels 18 

Protection : 

Of alien property 68 

Of American interests in Nicaragua 59 

Of citizens 66 

Of lives and property in Nanking 70 

Pursuit : 

Across international boundary 60 

Into foreign jurisdiction 81 

Keay. Lord, as to conversion 22 

Reconversion 22, 24, 31, 32 

Red Cross protest, as to attacking of hospital ships 111 

Reefs, submerged 9 

Refuge in neutral ports 42, 49, 50 

Repairs in neutral ports 4, 7, 29, 31, 43 

Brazilian rules as to 8 

On interned ship 31 

Retaliation 97 

Sale of war material by neutral persons 13 

Seacoast. state without 41 

Seaplanes : 

Internment of 90 

Search of 89 

(See also Aircraft.) 

Self-preservation 80 

Sojourn : 

In neutral ports 5, 13 

Norwegian rules as to 47 

Sul (marines and 13 



INDEX J 33 

Page 

Spaight, J. M., as to air blockade NT 

State, without access to the sea -II 

Submarine blockade. (Sec Blockade.) 

Submarines, in Norwegian waters 11.7s 

Subsidized vessels 21 

Sweden, as to repairs in port 7 

Territorial acquisitions originating in violence, nonrecog- 

nition of 05 

Territorial waters 38, 53 

Conduct of naval forces in foreign SO 

Jurisdiction of foreign merchant vessels in 75 

Norwegian rules as to 11,47,78 

Submarines in 11, 78 

Unlawful use of 81 

(See also Neutral ports.) 

Three-mile limit 3,9 

Trade, between neutral states 17, 20 

Traffic in aims and munitions '. 15,02,05) 

Transit : 

Through neutral state 20, 41 

Transit of goods 41 

Treaty of Paris, 1903 69 

Treaty of Versailles, as to use of gases in war 100,102 

Treaty of Washington, 1871 5, 50 

Twenty-four hour rule 4, 8, 29, 38, 50 

U. S. S. R 'l8 

United States: 

Act as to use of its ports, 1915 17,38 

Acts as to export of arms, 1935, 1936 14, 15 

Agreement with Mexico as to coaling in time of peace. 75 

As to belligerent submarines in Norwegian waters 11 

As to jurisdiction over foreign merchantmen 75 

Circular as to sale of war material by neutral persons- 13 

Conversion in ports of 27 

Protection of flag by 73 

Reciprocal agreement with Mexico as to pursuit across 

boundaries 60 

United States Navy Regulations 80 

Unneutral service 18, 19 42 

Vessels : 

Charter of, by neutral to belligerent 18 

Conversion of 21, 24, 27. 33 

Enemy, liability of, to attack 35 

Merchant. (See Merchant vessels.) 



134 INDEX 

Vessels — Continued. Page 

Neutral, seizure of 19 

Of insurgents 66, 71, 72, 81 

Neutral ports and 1-54 

Public, unarmed 35 

Vessels of war : 

Aircraft on board 96 

And ships assimilated thereto 51 

Asylum in neutral port of 50 

Brazilian rules as to sojourn of » 8 

Definition of term 25. 52 

Entrance of, in time of peace 47 

In neutral ports 4, 50 

Jurisdiction over 10 

Reconversion of 31 

Interment of 31, 91 

Supplying at sea of 37, 38, 41, 44, et seq. 

Supplying of, in foreign waters.: 75 

Visit and search 35 

Of seaplane 89 

War material, supplying of, by neutral persons 13 

Warfare, asphyxiating gases in 98etseq. 

Bacteriological 101, 105 

o